Abramyan v. United States Department of Homeland Security , 6 F. Supp. 3d 57 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NINA ABRAMYAN,
Plaintiff,
Civil Action No. 12-cv-01064 (BJR)
v.
MEMORANDUM OPINION
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, et al.,
Defendants.
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on a motion for summary judgment by Defendants
United States Department of Homeland Security (“DHS”), Attorney General Eric Holder, United
States Citizenship and Immigration Services (“USCIS”), and the USCIS National Records
Center (“NRC”). Plaintiff Nina Abramyan claims that Defendants (hereinafter “USCIS”)
violated the Freedom of Information Act (FOIA) in processing a request for information made on
her behalf by her attorney. See Complaint, Dkt. #1, ¶¶ 2, 5. USCIS argues that it satisfied the
statutory requirements by conducting a reasonable search, producing all responsive documents
covered by the statute, and properly withholding certain documents under statutory exemptions.
Defendants’ Motion for Summary Judgment (hereinafter “Defs’ Mot.”), Dkt. #7, at 1. Having
reviewed the parties’ briefs together with all relevant materials, the Court grants Defendants’
Motion for Summary Judgment, for the reasons stated below.
I. BACKGROUND
On December 8, 2011, Abramyan’s attorney, Anna Darbinian, filed a FOIA request with the
USCIS. The request included a completed copy of form G-28 (“Notice of Entry of Appearance
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as Attorney or Accredited Representative”), and a completed copy of form G-639 (“Freedom of
Information/Privacy Act Request”), along with a letter from Darbinian. See Compl., Ex. A-1.
Darbinian requested a “complete copy of the Alien File (A-File) (including: all decision
information, all applications, all petitions, all notices, all exhibits, all submissions, all receipts,
and any and all documents that consist of the complete and full Alien file from USCIS).” Id.
The letter gave Abramyan’s full name, an alternate name (“Nina Hovsepyan”), her date of birth,
and her place of birth (Azerbaijan), and stated that her Alien Number, or “A-Number,” was
unknown. Id. The G-639 form contained the same information, and also included a pending
visa petition number, listed in a box titled “Petition or Claim Receipt Number.” Id.
On December 19, 2011, USCIS acknowledged receipt of Darbinian’s FOIA request, stating
that it had “completed a search of our Central Index System (CIS) and Computer Linked
Applications Information Management Systems (CLAIMS),” but that “no records responsive to
your request were located.” Compl., Ex. A-2. USCIS’s response letter referenced the visa
petition number Abramyan had submitted on her G-639 form. Id.
Darbinian appealed the determination to the USCIS Appeals Office on January 23, 2012.
She alleged in the appeal letter that her client was seeking a visa from the United States
Consulate in Moscow, and that the consulate had informed her of a previous application for
asylum, made in 1999. Compl., Ex. B-1. Darbinian explained that according to the consulate,
Abramyan’s 1999 asylum application contained misrepresentations and/or fraud. Id. Darbinian
argued in the administrative FOIA appeal that if the Moscow consulate had a record of
Abramyan’s prior application, USCIS must also have a record of Abramyan’s asylum
application, and therefor Abramyan should have an A-file. Id. Darbinian added that Abramyan
was the beneficiary of a pending visa petition filed by Abramyan’s mother, again referencing the
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petition number, and also mentioned that Abramyan was the subject of a refugee status
application filed at the State Department’s Washington processing center “as early as June
1993.” Id. Darbinian requested an expedited reply, within 20 days, based on her need to timely
file a waiver on her client’s behalf, in response to the consulate’s allegations of
misrepresentation and/or fraud. Id.
On February 2, 2012, USCIS informed Darbinian via letter that it had decided to remand her
request for further search. Compl., Ex. B-2. On February 13, 2012, USCIS wrote Darbinian
acknowledging that her request had been received and was being processed on the “complex
track,” or “Track 2,” of USCIS’s first-in, first-out multi-track system. Compl., Ex. C.
In a letter dated April 23, 2012, USCIS wrote to Darbinian that it had completed review of its
records, and had identified 184 pages of responsive documents. Defs’ Mot., Ex. F. USCIS
determined that it would disclose 165 pages in full and two pages in part. Id. The letter
explained that USCIS was withholding six pages because they contained no reasonably
segregable portions of non-exempt information, citing 5 U.S.C. § 552(b)(5), (b)(6), and (b)(7)(e)
as the applicable FOIA exemptions. Id. 1 The letter itself did not describe the withheld
documents or connect any particular document with the asserted exemptions.
Abramyan filed this action on June 26, 2012. 2 She seeks a declaratory judgment that USCIS
is in violation of FOIA, and a court order requiring USCIS to release to her all the requested
files. Compl. at 8. As she represented to USCIS, Abramyan alleges that the United States
consulate in Moscow deemed her ineligible for a visa due to material misrepresentations in an
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USCIS also turned up eleven pages of documents from Immigration and Customs Enforcement (ICE). USCIS
referred those documents to ICE so that ICE could review them and respond to Darbinian directly. Id.2
It appears that Darbinian did not receive the records and letter from USCIS until August 2012, after filing this
action and engaging in further communication with USCIS. Defs’ Mot., Statement of Material Facts Not in Dispute
¶ 20; Plaintiff’s Statement of Genuine Issues and Material Facts in Dispute (Dkt. #10), ¶¶ 7-8. Though the
Complaint alleged that USCIS had not responded to the request as of June 26, 2012, see Compl. ¶ 18, in subsequent
briefing Abramyan concedes that she has by this point received the materials described in the April 23, 2012 letter
from USCIS. Pl’s Statement of Genuine Issues, ¶ 8.
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application for asylum filed by her in 1999. Compl. ¶¶ 3, 14. Abramyan argues that she needs
the files associated with the 1999 asylum application in order to respond to the misrepresentation
charges. Id. ¶ 19.
In support of its Motion for Summary Judgment, USCIS submitted the Declaration of Brian
Welsh (“Welsh Dec.”), the Deputy Branch Chief of the NRC FOIA Unit. With respect to the
adequacy of USCIS’s search for responsive records, Welsh stated that Darbinian’s January 3,
2012 appeal letter included “additional information” – namely Abramyan’s previous asylum
application and visa petition number – that allowed USCIS to retrieve Abramyan’s A-File.
Welsh Dec. ¶ 8. Welsh explained that USCIS used Abramyan’s visa petition number to search
USCIS’s Person Centric Query System (PCQS), which “enables USCIS staff to query an
individual’s identifying information, in this instance a visa petition number, and locate
government records pertaining to that individual.” Id. ¶ 12. Having retrieved Abramyan’s A-
number, USCIS tracked down her A-file. Id.Welsh described the documents USCIS withheld. According to Welsh, USCIS relied on
FOIA exemption (b)(6) in redacting certain personal details of the individual who filed a petition
on Abramyan’s behalf, and in redacting certain personal details of the interpreter used in the
asylum interview. Id. ¶¶ 17-18; see 5 U.S.C. § 552(b)(6).
Welsh also explained that USCIS withheld in full a two-page document entitled “Assessment
to Refer,” and four pages of handwritten notes, under exemption (b)(5). Id. ¶ 19; see 5 U.S.C. §
552(b)(5). Welch described the “Assessment to Refer” as “an internal agency record prepared
by the asylum officer after his/her interview with the Plaintiff…[which] contains a brief factual
distillation of the Plaintiff’s asylum interview and includes the INS asylum officer’s impressions
of that interview, including an assessment of the Plaintiff’s credibility, reasons for that
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assessment, and the recommendation of the asylum officer to deny the plaintiff’s application for
asylum and refer her to an immigration judge for further proceedings.” Id. According to Welsh,
the “Assessment to Refer” “reflects a summary of the pertinent facts and the officer’s
impressions and conclusions and is an integral part of the deliberative process the agency
undertakes when determining how to adjudicate an asylum application.” Id. ¶ 20. Welsh
characterized the assessment as the asylum officer’s “initial recommendation on the asylee’s
application,” reviewed by a supervisory officer. Id.As for the handwritten notes, Welsh explained that the first page “contains handwritten notes
of an INS officer concerning his/her review of records relevant to the Plaintiff’s asylum
application,” including “discussion of birth certificates” of Abramyan and another individual. Id.
¶ 21. Welsh said that “[t]he notes reveal the INS officer’s impressions about the birth certificates
relevant to Plaintiff’s asylum claim and indicated the officer needed additional information
concerning the birth certificates.” Id. The next three pages were described as “handwritten
notes” that “record various portions of the Plaintiff’s asylum interview and include some
discussion about the Azerbaijan birth certificates the Plaintiff provided for herself and her
daughters. Id. Welsh asserted that “[t]he notes reflect commentary on the veracity of documents
submitted by the Plaintiff in support of her asylum application,” as well as “preliminary
conclusions drawn by the asylum officer during the Plaintiff’s asylum interview.” Id.Welsh maintained that “none of the information in the records at issue can be reasonably
segregated” because “[t]he factual portions of the Assessment to Refer and in the handwritten
notes cannot be severed from their context.” Id. He stated that “[t]he factual distillation in the
Assessment to Refer record and in the handwritten notes does not purport to be a verbatim
transcript of the Plaintiff’s asylum interview,” but rather reflected the asylum officer’s selection
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of pertinent facts. Id.Relying upon Welsh’s declaration, USCIS claims that the search it conducted was adequate
under FOIA, and that it properly withheld certain documents under FOIA exemptions (b)(5) and
(b)(6). Defs’ Mot. at 7-8, 10-15. Specifically, USCIS argues that the search it made in response
to Abramyan’s February, 2012 appeal was made in good faith, using methods reasonably
calculated to uncover responsive documents. Id. at 8. USCIS maintains that the redacted
personal information was exempt from disclosure under exemption (b)(6), and that the
Assessment to Refer and the asylum officer’s handwritten notes were properly withheld under
exemption (b)(5)’s deliberative process privilege. Id. at 10-15.
Abramyan argues that the information provided in the original FOIA request should have
been sufficient to retrieve the records, and thus USCIS’s initial search in response to the
December, 2011 FOIA request was inadequate. Plaintiff’s Opposition to Defendants’ Motion for
Summary Judgment (“Pl’s Opp.”), Dkt. #9, at 4-5. Abramyan also challenges the withholdings
under exemption (b)(5). She proposes that the Assessment to Refer was a final opinion not
subject to the deliberative process privilege, and that USCIS’s descriptions of the handwritten
notes are so generic as to prevent the Court from determining whether the exemption should
apply and whether USCIS met its burden in disclosing all segregable non-exempt information.
Id. at 9-10.
II. LEGAL STANDARD
The Freedom of Information Act provides “a statutory right of public access to documents
and records held by agencies of the federal government.” Pratt v. Webster, 673 F.2d 408, 413
(D.C. Cir. 1982); see also 5 U.S.C. § 552. The statute provides for disclosure of agency records,
upon a proper request, unless the information sought falls within any of nine exemptions. See 5
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U.S.C. §§ 552(a)(3), (b).
Most FOIA cases can be resolved on summary judgment. See Brayton v. Office of the U.S.
Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is granted when
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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In a
FOIA case, an agency is entitled to summary judgment if it can demonstrate that there are no
material facts in dispute as to the adequacy of its search for or production of responsive records.
Nat'l Whistleblower Ctr. v. U.S. Dep't of Health & Human Servs., 849 F. Supp. 2d 13, 21–22
(D.D.C. 2012).
Where a plaintiff challenges the adequacy of a search, “[w]hat the agency must show beyond
material doubt is that it has conducted a search reasonably calculated to uncover all relevant
documents.” Id. To meet this burden, the agency may submit affidavits or declarations that are
“relatively detailed and nonconclusory and . . . submitted in good faith.” Perry v. Block, 684
F.2d 121, 126 (D.C. Cir. 1982) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978))
(internal quotation marks omitted). Such agency affidavits “are accorded a presumption of good
faith, which cannot be rebutted by purely speculative claims about the existence and
discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (internal quotation marks and citation omitted). “If, however, the record leaves
substantial doubt as to the sufficiency of the search, summary judgment for the agency is not
proper.” Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990).
Where a plaintiff challenges a withholding under 5 U.S.C. § 552(b), an agency must show
that any responsive information it has withheld was either exempt from disclosure under one of
the exemptions enumerated in 5 U.S.C. § 552(b), or else “inextricably intertwined with” exempt
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information. Mead Data Central, Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir.
1977). “Because FOIA challenges necessarily involve situations in which one party (the
government) has sole access to the relevant information, and that same party bears the burden of
justifying its disclosure decisions, the courts ... require the government to provide as detailed a
description as possible—without, of course, disclosing the privileged material itself—of the
material it refuses to disclose.” Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1178 (D.C. Cir.
1996). This justification is typically contained in a declaration or affidavit. 3 An agency's
affidavits or declarations are presumed to be submitted in good faith. See SafeCard Servs., Inc.
v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991). The agency must provide “an adequate
description of the records” and “a plain statement of the exemptions relied upon to withhold each
record,” so as to “permit adequate adversary testing of the agency's claimed right to an
exemption.” Nat'l Treasury Emps. Union v. U.S. Customs Service, 802 F.2d 525, 527 n. 9 (D.C.
Cir. 1986) (citing Mead Data, 566 F.2d at 251).
5 U.S.C. § 552(b)(5) permits agencies to withhold documents that are part of the agency’s
deliberative processes. A document must satisfy two conditions in order for the agency to
properly withhold it under this exemption: (1) its source must be a government agency, and (2) it
must fall within the ambit of a privilege against discovery under judicial standards that would
govern litigation against the agency that holds it. See Dep't of Interior v. Klamath Water Users
Protective Ass'n, 532 U.S. 1, 8–9 (2001). To qualify for protection under the deliberative
process privilege, an agency's materials must be both “predecisional” and a part of the
government's “deliberative process.” Id. at 14 (quoting Nat'l Inst. of Military Justice v. U.S.
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Where an agency has made extensive withholdings, the agency prepares an index that describes each withheld
document and explains the basis for the withholding, referred to as a Vaughn index after the case of Vaughn v.
Rosen, 484 F.2d 820 (D.C. Cir. 1973). The limited number of documents at issue in this case makes a full Vaughn
index unnecessary.
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Dep't of Defense, 512 F.3d 677, 680 n. 4 (D.C. Cir. 2008); accord Pub. Citizen, Inc. v. Office of
Mgmt. & Budget, 598 F.3d 865, 867 (D.C. Cir. 2010).
The scope of the privilege does not turn on whether the contents of a record are labeled
“factual” or “deliberative,” but rather on whether the record reflects an agency's deliberative
process. Nat'l Wildlife Fed. v. U.S. Forest Serv., 861 F.2d 1114, 1119 (9th Cir. 1988); see
Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992) (cautioning
“against reflexive fact/opinion characterization as the way to decide the full range of Exemption
5 cases”). A record is deliberative if “it reflects the give-and-take of the consultative process.”
Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006) (quoting Coastal States Gas
Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). Within this rubric, courts have
found the privilege to cover “documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions and policies are
formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975). Factual information
must ordinarily be disclosed. See Petroleum Info. Corp., 976 F.2d at 1435 (citing EPA v. Mink,
410 U.S. 73, 87,89 (1973) (endorsing fact/opinion distinction)). However, even “purely” factual
information is protected by the deliberative process privilege when it “is so inextricably
intertwined with the deliberative sections of documents that its disclosure would inevitably
reveal the government's deliberations.” Citizens for Responsibility and Ethics in Washington
(CREW) v. U.S. Dept. of Homeland Sec., 514 F. Supp. 2d 36, 46 (D.D.C. 2007); Judicial Watch,
Inc. v. Dep't of Treasury, 796 F. Supp. 2d 13, 27–28 (D.D.C. 2011) (citing cases).
To justify withholding documents pursuant to this privilege, the agency must show “by
specific and detailed proof that disclosure would defeat, rather than further, the purposes of the
FOIA.” Mead Data, 566 F.2d at 258. It must point to the role in the deliberative process played
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by each of the documents. See Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d 252,
259 (D.D.C. 2004) (requiring the agency to identify the role of a contested document in a
specific deliberative process to prove that disclosure would defeat the purposes of FOIA).
III. ANALYSIS
A. Adequacy of USCIS’s Search
As noted above, to prevail on summary judgment an agency must show that it conducted a
search reasonably calculated to uncover all relevant documents. Although USCIS was initially
unsuccessful, Welsh’s declaration explains that USCIS was subsequently able to retrieve
Abramyan’s A-file when Darbinian’s letter of appeal “provided additional information about
[Abramyan], including that she had applied for asylum and is the beneficiary of a visa
petition…that was filed by her motion and pending at the U.S. consulate in Moscow, Russia.”
Welsh Dec. ¶ 8. According to Welsh, USCIS used Abramyan’s visa petition number to search
USCIS’s Person Centric Query System (PCQS), thereby retrieving Abramyan’s A-number and
A-file. Id. ¶ 12.
USCIS does not explain why it was unable to retrieve Abramyan’s A-file using the
information she submitted in her initial FOIA request. Nevertheless, that issue is moot.
Abramyan does not dispute that she ultimately received the documents responsive to her request,
save the six pages USCIS withheld. 4 Subsequent production can cure deficiencies in the initial
search. See People for the Ethical Treatment of Animals, Inc. v. Bureau of Indian Affairs, 800 F.
Supp. 2d 173, 179 (D.D.C. 2011). Welsh’s declaration describes in detail the search process that
ultimately produced the documents. Welsh Dec. ¶¶ 7, 12. The Court affords Welsh’s
4
Abramyan also alleges that ICE never responded regarding the eleven pages referred to that agency by USCIS.
See Pl’s Statement of Genuine Issues ¶¶ 8-9. However, Abramyan did not bring suit against ICE, and has not
alleged that USCIS erred in making the referral, or that ICE improperly withheld documents or failed to conduct an
adequate search. Thus her allegations regarding ICE fall outside the scope of this case.
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declaration the presumption of good faith, which Abramyan has not attempted to rebut. That
USCIS ultimately retrieved the documents after initially coming up empty does not evidence bad
faith. See Nat'l Inst. of Military Justice v. U.S. Dep't of Def., 404 F. Supp. 2d 325, 333-34
(D.D.C. 2005) aff'd, 512 F.3d 677 (D.C. Cir. 2008) (“While it now seems obvious that the
defendant's initial search was inadequate, and it is clear that the defendant could have been more
diligent in its initial response to the plaintiff's FOIA request, this does not demonstrate bad
faith…especially in light of the subsequent efforts to search for responsive records once the
parties engaged in discussions about the specific type of documents the plaintiff was seeking”).
In fact, to treat subsequent production as proof that the agency conducted an inadequate
search, or acted in bad faith, would “punish those agencies that attempted to correct past
inadequate searches.” PETA, 800 F. Supp. 2d at 179. Accordingly, the Court finds that USCIS
conducted an adequate search.
B. Documents Withheld Under Exemption (b)(5)
i. Assessment to Refer
Abramyan does not dispute that the Assessment to Refer includes deliberative material.
Welsh’s declaration explains that the Assessment to Refer “contains a brief factual distillation”
of the asylum interview, along with the asylum officer’s assessment of Abramyan’s credibility,
the reasons for that assessment, and the asylum officer’s recommendation. Welsh Dec. ¶ 19.
Assessments of credibility and recommendations are “quintessential deliberative information.”
Anguimate v. U.S. Dep't of Homeland Sec., 918 F. Supp. 2d 13, 19 (D.D.C. 2013) (finding that
USCIS properly withheld an Assessment to Refer under the deliberative process privilege).
Even the factual information in the Assessment to Refer can be considered deliberative, because
it is a “distillation” of the facts, not a “verbatim transcript.” Welsh Dec. ¶ 21. The asylum
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officer’s particular selection of facts may reveal USCIS’s deliberative process. See Ancient Coin
Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 513–14 (D.C. Cir.2011) (recognizing
deliberative process privilege for factual summaries culled by the agency from a much larger
universe of facts, because they reflect an exercise of judgment as to what issues are most relevant
to the pre-decisional findings and recommendations). Welsh’s description of the document is
sufficient to establish that the Assessment to Refer is deliberative.
Abramyan challenges USCIS’s assertion that the Assessment to Refer was predecisional.
She contends that the Assessment to Refer is, in effect, the final decision of USCIS on an asylum
application, subject only to perfunctory review by a supervisory officer. Pl’s Opp. at 6-7.
However, even Abramyan appears to concede that the supervisory review constitutes more than a
rubber stamp. Id. at 7 (“Although a supervisory asylum officer (SAO) reviews the asylum
officer’s Assessment to Refer, it is often simply a matter of procedure”) (emphasis added). The
same manual that Abramyan quotes as vesting the decision entirely in the asylum officer also
instructs supervisors to give “substantial deference” – i.e., not complete deference – to the
interviewing officer’s determination. Id. In fact, Abramyan’s perspective is consistent with
Welsh’s declaration, which describes the Assessment to Refer as the asylum officer’s “initial
recommendation.” Welsh Dec. ¶ 21.
Another court in this Circuit recently reached the same conclusion on similar facts with
respect to an Assessment to Refer. See Anguimate, 918 F. Supp. 2d at 18 (“The ‘predecisional’
nature of the Assessment is clear, given that it predated and formed the basis for [USCIS’s]
decision to deny the plaintiff's asylum application”). Because the Assessment to Refer was both
predecisional and deliberative, it qualifies for withholding under exemption (b)(5).
Abramyan suggests briefly that “any deliberative portion [of the Assessment to Refer] can be
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severed from the factual findings and record of proceedings.” Pl’s Opp. at 8. The Court
understands this as argument regarding the reasonable segregability of factual material within the
document. However, Abramyan’s argument fails because, as Welsh explained, even the factual
material was deliberative. See Welsh Dec. ¶ 21 (“the factual portions of the Assessment to
Refer…reflect[] a selective recording of information the INS asylum officer deemed particularly
pertinent to Plaintiff’s request for asylum”). This echoes the principle re-affirmed by the D.C.
Circuit in Ancient Coin Collectors, that certain factual summaries are exempt from disclosure
where they reflect an exercise of judgment as to what is relevant. See 641 F.3d at 513. USCIS’s
description of the document leaves no non-exempt material to segregate.
ii. Handwritten Notes
Abramyan challenges the withholding of the handwritten notes on the ground that USCIS’s
descriptions of the handwritten notes are so generic as to prevent the Court from determining
whether the exemption should apply, or whether USCIS met its burden in disclosing all
segregable non-exempt information. Pl’s Opp. at 9-10. FOIA requires the government to
provide as much detail as possible, without actually disclosing the privileged material itself.
Oglesby, 79 F.3d at 1178. In this case, the Welsh declaration explained that the withheld pages
are “handwritten notes from INS officers who examined and adjudicated the Plaintiff’s
application for asylum.” Welsh Dec. ¶ 21. Welsh stated that the first page concerns the officer’s
“review of records relevant to the Plaintiff’s asylum application, including discussion of birth
certificates from Azerbaijan.” Id. Welsh described information concerning Plaintiff’s birth
certificate and that of “another individual,” as well as “the INS officer’s impressions about the
birth certificates” and indications that “the officer needed additional information concerning the
birth certificates.” Id. Welsh also referred to “a discussion about a translation of the birth
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certificates” and “references [to] another individual’s A-number.” Id. This is a sufficiently
detailed description for the Court to determine that the deliberative process privilege applies, and
that no information on that page is reasonably segregable.
According to Welsh, the remaining pages “record various portions of the Plaintiff’s asylum
interview and include some discussion about the Azerbaijan birth certificates the Plaintiff
provided for herself and her daughters.” Id. Welsh said that “the notes reflect commentary on
the veracity of the documents submitted by the Plaintiff,” and “preliminary conclusions drawn by
the asylum officer during the Plaintiff’s asylum interview.” Id. As with the first page, Welsh’s
description provides enough detail for the Court to determine that the notes are protected by the
deliberative process privilege, and that USCIS could not reasonably segregate non-exempt
information – if any non-exempt information exists on those pages.
Abramyan does not appear to dispute that the notes are predecisional, as they unquestionably
precede even the Assessment to Refer. Insofar as they contain commentary on Abramyan’s
credibility and recommendations regarding asylum, the handwritten notes are as
“quintessentially deliberative” as similar sections in the Assessment to Refer. With respect to
the factual material, the Welsh declaration indicates that only “various portions” of the interview
were recorded, not a “verbatim transcript.” The Court cannot require USCIS to describe exactly
which portions of the interview the asylum officer selected to record, without defeating the
purpose of the exemption. Welsh’s declaration suffices to show that the selective summary of
factual material is itself deliberative, and thus protected from disclosure. 5
5
Hajro v. U.S. Citizenship & Immigration Servs., 832 F. Supp. 2d 1095 (N.D. Cal. 2011), cited by Abramyan, is
readily distinguishable from this case. In Hajro, the court required USCIS to isolate certain factual information
from handwritten interview notes and disclose that information along with an expedited Vaughn index. 832 F. Supp.
2d at 1114. The court recognized that “at least a fair portion of the handwritten notes” might contain deliberative
material, but USCIS had failed to offer “any detailed affidavit or even a description of what type of material the
notes cover and, in a non-conclusory manner, their role in the agency's process.” Id. at 1113-14. USCIS also did
not “set forth any basis for the court to evaluate whether, taking into account the deliberative process as a whole,
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For the reasons given in this Memorandum Opinion, the Court will GRANT Defendants’
Motion for Summary Judgment. A separate Order consistent with this Opinion will issue.
December 4, 2013
BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE
relevant factual information contained in the handwritten notes may be disclosed without revealing the mental
process of the decisionmaker.” Id. at 1114. Those circumstances are not present in this case. USCIS has submitted
an affidavit describing the notes in sufficient detail for the Court to make its determination.
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