Gosen v. United States Citizenship & Immigration Services

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
NELSON J. MEZERHANE GOSEN, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-CV-1091 (KBJ)
)
UNITED STATES CITIZENSHIP )
AND IMMIGRATION SERVICES, )
)
Defendant. )
)
_______________________________ )
MEMORANDUM OPINION
Plaintiff Nelson Mezerhane Gosen (“Mezerhane Gosen”) is the former owner of
the Venezuelan television station Globovisión and a critic of the current Venezuelan
regime. In August of 2010, Mezerhane Gosen applied for asylum in the United States ,
claiming politically-motivated persecution. After three years passed and a final asylum
status determination still had not been issued, Mezerhane Gosen filed a document
request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking all
information related to his application for asylum in the United States . In response to
this request, Defendant U.S. Citizenship and Immigration Services ( “USCIS”) initially
released 498 pages in full, and also partially or fully withheld an additional 139 pages
of responsive documents. (Compl. ¶ 8.) Some back and forth between the parties
ensued; 77 pages of responsive documents remain at issue at this point.
Before this Court at present are the parties’ cross-motions for summary
judgment. (See Def.’s Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 17; Pl.’s Opp’n to
Def.’s Mot. and X-Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 20.) USCIS maintains
that it has properly withheld the remaining contested documents on the basis of FOIA
Exemptions 5, 6, 7(C), and 7(E) because those documents are subject to the deliberative
process privilege, or implicate substantial privacy interests that are not outweighed by
any public interest, or could potentially reveal sensitive information about law
enforcement techniques. Mezerhane Gosen responds that the remaining contested
documents are being withheld improperly, and probably so because they are likely to
reveal impropriety in the handling of his asylum application. (See Pl.’s Mem. of P&A
in Supp. of Pl.’s Mot. (“Pl.’s Mem.”), ECF No. 20-1, at 7 (“There is concrete evidence
of troubling Agency behavior and lack of compliance with Agency regulations in this
case that cannot be fully uncovered without the transparency that FOIA requires.”).) 1
On October 16, 2014, this Court ordered that USCIS provide to the Court all 77
contested pages for in camera review. Having now had the opportunity to review these
documents—and also having reviewed the recent opinion of another judge in this
district in an essentially identical FOIA case involving Mezerhane Gosen’s daughter,
see Mezerhane de Schnapp v. USCIS, No. CV 13-1461, 2014 WL 4436925, at *1
(D.D.C. Sept. 9, 2014) (Bates, J.)—this Court concludes that Defendant’s motion for
summary judgment must be GRANTED IN PART because FOIA Exemptions 6, 7(C),
and 7(E) were properly applied. However, given that there remains a genuine dispute
of material fact as to the applicability of Exemption 5, Defendant’s motion for summary
judgment will be DENIED IN PART, and Plaintiff’s motion for summary judgment
will be DENIED in full. A separate order consistent with this opinion will follow.
I. BACKGROUND
As noted above, Mezerhane Gosen is a Venezuelan television executive who
sought asylum in the United States, along with other members of his immediate family,
1
Page numbers throughout this Opinion refer to those that the Court’s electronic filing system assigns.
2
in order to escape from alleged political persecution in his native Venezuela. (Compl.
¶ 6.) In March of 2013, after none of Plaintiff’s family members had heard anything
from USCIS about the status of their asylum applications, Plaintiff filed a FOIA request
specifically seeking his complete “A-File.” (Id. ¶ 7.) An A-File (short for “Alien
File”) is a record that contains all documents and information related to a person’s
interactions with the U.S. immigration system. (Decl. of Jill A. Eggleston (“Eggleston
Decl.”), ECF No. 17-3, ¶ 9 n.2.)
In May of 2013, USCIS released 498 pages of documents to Plaintiff, withheld
partially 84 pages, and withheld fully 55 pages. (Compl. ¶ 8.) 2 These documents were
purportedly withheld pursuant to FOIA Exemptions 5, 6, 7(C), and 7(E). ( Id.) On May
10, 2013, Plaintiff filed an administrative appeal, challenging the 139 withheld or
redacted documents (id. ¶ 9), and USCIS responded by partially releasing four
documents that had previously been fully withheld (id. ¶ 10). Shortly thereafter, on
July 16, 2013, Plaintiff filed the instant case. Since this suit was filed, both parties
have managed to negotiate the number of contested documents down to 77 pages —47
that have been fully withheld and 30 that are partially withheld. (Eggleston Decl. ¶ 22.)
On November 25, 2013, Plaintiff finally received a letter informing him that he
had been granted asylum. (Pl.’s Mem. at 7-8.) However, Plaintiff asserts that USCIS
actually granted his asylum application in September of 2010—three years earlier and a
mere six weeks after he filed his asylum application—but, for some reason, the agency
had refused to act on its decision at that time. (Id.) Plaintiff’s contention regarding the
allegedly unwarranted delay is primarily based on a database screenshot that he
2
An additional 53 responsive pages were identified but were referred to other agencies and are not at
issue in this case. (Def.’s Mem. of P&A in Supp. of Def.’s Mot. (“Def.’s Mem.”), ECF No. 17 -2, at 1
n.1.)
3
received as part of the initial release of documents. This document, which appears to
be a summary of Plaintiff’s asylum application, states: “CURRENT STATUS:
ASYLUM GRANTED,” “FINAL DECISION: GRANTED,” and “DATE: 9/21/2 010.”
(Ex. E to Pl.’s Mem. (“RAPS Screenshot”), ECF No. 20 -5, at 3.) According to
Plaintiff, this document and other corroborating evidence establishes that he actually
was granted asylum on September 21, 2010, and therefore, USCIS violated its own
governing statute and regulations by waiting more than three years to notify him of this
fact. (Pl.’s Mem. at 7-9.) Plaintiff is seeking additional information about the delayed
asylum notification, and to this end, he (and certain other family members) have
maintained lawsuits under the FOIA.
In their briefs with respect to the pending cross-motions for summary judgment,
Defendant and Plaintiff dispute the applicability of the four claimed exemptions in
various respects. First, both parties argue over whether the documents that have been
withheld under Exemption 5 are truly predecisional, in light of Plaintiff’s argument that
his asylum application was approved prior to the creation of those documents. (See
Def.’s Mem. of P&A in Supp. of Def.’s Mot. (“Def.’s Mem.”), ECF No. 17-2, at 5-9;
Pl.’s Mem. at 13-17.) Second, the parties dispute whether Defendant properly balanced
the public’s interest in release of the documents with the privacy interest of certain
named individuals when withholding documents under Exemptions 6 and 7(C). (Def.’s
Mem. at 9-12, 14-15; Pl.’s Mem. at 17-24.) Third, the parties disagree over whether
Defendant has provided sufficient justification for its invocation of Exemption 7(E).
(Def.’s Mem. at 12-15; Pl.’s Mem. at 24-28.) Significantly, these exact same legal
arguments were made in the context of a substantially identical FOIA action that
4
Mezerhane Gosen’s daughter filed in this district at around the same time that Plaintiff
filed the instant lawsuit. See generally Mezerhane de Schnapp, 2014 WL 4436925.
In the Mezerhane de Schnapp case, the Court conducted an in camera review and
considered the applicability of the same four FOIA exemptions at issue in the instant
case in the context of that asylum applicant’s A-File. In an opinion released on
September 9, 2014, the Court rejected the plaintiff’s contention that, when USCIS
withheld documents under FOIA Exemptions 6 and 7(C), the agency ignored the
important public interest served by releasing the redacted information, and the Court
concluded instead that because no public interest would be served by releasing the
withheld information, Exemptions 6 and 7(C) were properly applied. Id. at *4-*5. The
Court also rejected the plaintiff’s argument that USCIS failed to explain adequately
how certain information withheld under FOIA Exemption 7(E) could lead to
circumvention of the law. Id. at *2-*3. Nevertheless, despite finding in favor of
USCIS with regard to Exemptions 6, 7(C), and 7(E), the Court also found that it could
not reach any firm conclusion with respect to the applicability of Exemption 5. Id. at
*9. This was because of the Court’s recognition that, even though the withheld
information appeared to fall within the deliberative process privilege, the plaintiff had
provided sufficient evidence to cast doubt on the appropriateness of the invocation of
that exemption. Id. Ultimately, as a result of the same core factual dispute that is at
issue here—i.e., the parties’ disagreement regarding when the plaintiff’s asylum
decision was made and thus whether the documents withheld under Exemption 5 are
truly predecisional—the Court decided to deny the parties’ cross-motions for summary
judgment.
5
Although neither party to the instant action had the benefit of the analysis and
conclusions of the Court in Mezerhane de Schnapp at the time that they briefed the
summary judgment motions at issue here, that case is clear and direct precedent for this
Court’s analysis of the pending cross-motions. As explained fully below, this Court has
reviewed in camera the 77 contested pages in this matter, and it finds no reason to
depart from the reasoning in Mezerhane de Schnapp. Therefore, this Court
substantially adopts the analysis of the Mezerhane de Schnapp opinion, and likewise
concludes that, although USCIS is entitled to summary judgment as to Exemptions 6,
7(C), and 7(E), a genuine dispute of material fact precludes the granting of summary
judgment as to Exemption 5. 3
II. LEGAL STANDARDS
A. The FOIA And Exemptions 5, 6, and 7
The FOIA “was enacted to facilitate public access to Government documents” in
order to “pierce the veil of administrative secrecy and to open agency action to the light
of public scrutiny.” Dep’t of State v. Ray, 502 U.S. 164, 173 (1991) (internal quotation
marks and citation omitted). Pursuant to the text of the FOIA, “each agency, upon any
request for records which (i) reasonably describes such records and (ii) is made in
accordance with published rules stating the time, place, fees (if any), and procedures to
be followed, shall make the records promptly available to any person.” 5 U.S.C.
3
This Court also concludes, after careful in camera consideration of the relevant redactions, that all
reasonably segregable information has been released. See, e.g., Espino v. DOJ, 869 F. Supp. 2d 25, 30
(D.D.C. 2012) (finding after in camera review that all reasonably segregable information was released);
Judicial Watch, Inc. v. Dep’t of Treasury, 802 F. Supp. 2d 185, 206 (D.D.C. 2011) (finding after in
camera review that information should have been released because it was reasonably segregable);
Jefferson v. Reno, No. CIV.A. 96-1284 (GK), 2001 WL 34373012, at *2 (D.D.C. Aug. 27, 2001) (using
in camera review “primarily for the identification of reasonably segregable portions that must be
disclosed”). Thus, this Court rejects Plaintiff’s follow -on argument that, even if Defendant was
justified in withholding some portions of the relevant documents, Defendant failed to segregate and
produce reasonably segregable information, as FOI A requires. (See Pl.’s Mem. at 33-34); see also 5
U.S.C. § 552(b).
6
§ 552(a)(3)(A). Notably, despite the clear “prodisclosure purpose” of the statute, Nat’l
Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004), the FOIA also
contains nine exemptions—i.e., specified circumstances under which disclosure is not
required, 5 U.S.C. § 552(b). These exemptions “must be narrowly construed.” Dep’t of
Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). Moreover, “the strong
presumption in favor of disclosure places the burden on the agency to justify the
withholding of any requested documents.” Ray, 502 U.S. at 173.
Exemption 5 covers “inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency in litigation with the
agency[.]” 5 U.S.C. § 552(b)(5). “Exemption 5 ‘incorporates the traditional privileges
that the Government could assert in civil litigation against a private litigant’—including
the presidential communications privilege, the attorney-client privilege, the work
product privilege, and the deliberative process privilege—and excludes these privileged
documents from FOIA’s reach.” Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir.
2008) (citing Baker & Hostetler LLP v. Dep’t of Commerce, 473 F.3d 312, 321 (D.C.
Cir. 2006)).
Exemption 6 exempts from disclosure “personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy[.]” 5 U.S.C. § 552(b)(6). Echoing this language, Exemption 7(C)
exempts from disclosure law enforcement information that “could reasonably be
expected to constitute an unwarranted invasion of pe rsonal privacy.” Id.
§ 552(b)(7)(C). In order to determine whether information was validly withheld under
Exemptions 6 or 7(C), the Court must balance the privacy interest s of the affected party
with the public’s interest in the information. See Favish, 541 U.S. at 172. And because
7
“the standard for evaluating a threatened invasion of privacy interests resulting from the
disclosure of records compiled for law enforcement purposes is somewhat broader than
the standard applicable to personnel, medical, and similar files[,]” DOJ v. Reporters
Comm. For Freedom of Press, 489 U.S. 749, 756 (1989), if a document was properly
redacted under Exemption 7(C), then it was also properly redacted under Exemption 6.
See id.
Exemption 7(E), like 7(C), only applies to documents that contain law
enforcement information. Specifically, Exemption 7(E) applies to documents that
“would disclose techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement invest igations or
prosecutions if such disclosure could reasonably be expected to risk circumvention of
the law[.]” 5 U.S.C. § 552(b)(7)(E).
B. Summary Judgment In FOIA Cases
Federal Rule of Civil Procedure 56 provides that summary judgment shall be
granted where “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” The moving party bears the burden of proving
that it is entitled to summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986). In the FOIA context, a district court reviewing a motion for summary
judgment conducts a de novo review of the record, and the responding federal agency
bears the burden of proving that it has complied with its obligations under the FOIA.
See 5 U.S.C. § 552(a)(4)(B); see also In Def. of Animals v. Nat’l Insts. of Health, 543 F.
Supp. 2d 83, 92–93 (D.D.C. 2008). Because the court must analyze all underlying facts
and inferences in the light most favorable to the FOIA requester, see Willis v. DOJ, 581
F. Supp. 2d 57, 65 (D.D.C. 2008), summary judgment for an agency is only appropriate
8
after the agency proves that it has “fully discharged its [FOIA] obligations[,]” Moore v.
Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996).
The agency may prove compliance with the FOIA through affidavits from
officials within the relevant agency. See Defenders of Wildlife v. U.S. Border Patrol,
623 F. Supp. 2d 83, 87 (D.D.C. 2009); Robinson v. Att’y Gen. of U.S., 534 F. Supp. 2d
72, 78 (D.D.C. 2008). Such affidavits alone ma y justify a grant of summary judgment
so long as they “describe the documents and the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information withheld logically falls
within the claimed exemption, and are not controverted by either contrary evidence in
the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656
F.2d 724, 738 (D.C. Cir. 1981) (footnote omitted).
III. ANALYSIS
On October 16, 2014, this Court ordered USCIS to produce the 77 disputed pages
for in camera review. The produced documents all come from Plaintiff’s A -File and
reflect many different stages of the asylum-application review process. Of these 77
pages, 47 have been withheld in their entirety and 30 have been partially wi thheld.
Moreover, nearly every document among the 77 disputed pages contains information
withheld on the basis of Exemptions 6, 7(C), and 7(E), but only 22 pages contain
information that has been withheld on the basis of Exemption 5.
It is important to note, as a general matter, that the corpus of documents at issue
here is significantly larger than the set of documents that were in dispute in the
Mezerhane de Schnapp case. See Mezerhane de Schnapp, 2014 WL 4436925, at *1, *5
(noting that only 47 pages remained in dispute and only 5 pages were withheld on the
basis of Exemption 5). However, the court in that case addressed precisely the same
9
legal arguments that are at issue here in exactly the same context, and it determined that
Exemptions 6, 7(C), and 7(E) were properly applied but a factual dispute prevented any
such conclusion as to Exemption 5. As explained below, this Court’s in camera review
of the 77 documents at issue here yields the same result. 4
A. The Withholdings USCIS Made Pursuant To FOIA Exemptions 6 And
7(C) Were Proper
As noted above, information is properly withheld under both Exemptions 6 and
7(C) so long as the public’s interest in disclosure does not outweigh an identified
individual’s interest in privacy. Favish, 541 U.S. at 172. It is well established that
Exemption 6 pertains to information that is properly characterized as “personnel . . .
and similar files,” while Exemption 7(C) applies when substantially the same kind of
private, identifying information is contained in law enforcement documents. Here,
among the 77 pages of redacted material at issue, almost all of the redactions made
under Exemptions 6 and 7(C) shield logistical details about USCIS or other government
employees. For example, the names of the various asylum officers that are identified as
the source of the documents are consistently removed. (See, e.g., Vaughn Index, Ex. I
4
In a document Plaintiff filed purportedly as a “response” to Defendant’s submission of the disputed
records for in camera review pursuant to this Court’s order, Plaintiff argues that this Court should not
blindly follow the ruling in Mezerhane de Schnapp because of important factual differences between
the two cases. (Pl.’s Resp. to Def.’s Submission for In Camera Review (“Pl.’s Resp. to Def.’s
Submission”), ECF No. 30.) To begin with, Plaintiff notes, “the category, breadth, and contents of
documents withheld, are likely substantially different” in the two cases. ( Id. at 2.) While it is true that
there are some differences in the documents withheld in each case and th at those differences require
this Court to undertake an individualized evaluation of the documents , Mezerhane de Schnapp still has
precedential value because the same legal arguments are brought to bear on very similar documents that
have been withheld for essentially identical reasons. Plaintiff also seeks to distinguish this case from
Mezerhane de Schnapp by contending that the processing of his application “was riddled with
procedural irregularities”—seemingly more than were present in the processing of his daughter’s
application. (Id. at 3.) The one example that Plaintiff cites as evidence of these irregularities —the
presence of a screenshot suggesting his asylum application was granted in September of 2010 —has
been duly considered and forms an important part of this Court’s analysis of Exemption 5. See Part
III.C supra.
10
to Def.’s Mem., ECF No. 17-7, at 1, 3, 4-5, 7, 28, 29, 153, 157, 257.) 5 So, too, those
officers’ signatures and identifying database codes have been redacted. (See, e.g., id. at
1, 28, 83-108, 153, 159, 167, 169, 257.) There are a small number of documents in
which names and identifying information (such as addresses) of third parties that are
not USCIS or other government officials are also withheld under Exemptions 6 and
7(C); these redactions appear to relate to information generated in the context of
criminal background checks. (See, e.g., id. at 7-9, 10-21, 83-108, 129-33.)
Plaintiff concedes that many of the documents at issue contain information that
Exemption 6 protects, but he generally disputes the applicability of Exemption 7 on the
grounds that USCIS needs—and lacks—“a law enforcement mandate.” (Pl.’s Mem. at
26 (internal quotation marks omitted).) 6 As the court in Mezerhane de Schnapp noted in
response to an identical argument, the argument that an agency must have “a law
enforcement mandate” to invoke Exemption 7 is entirely unsupported. See Mezerhane
de Schnapp, 2014 WL 4436925, at *3. Moreover, and in any event, the sorts of files at
issue here, as in Mezerhane de Schnapp, “are involved with the enforcement of a statute
or regulation within [USCIS’s] authority and . . . were compiled for adjudicative or
enforcement purposes[.]” Id. (internal quotation marks and citation omitted). Indeed,
courts regularly find Exemption 7 applicable to USCIS documents. See, e.g., Techserve
Alliance v. Napolitano, 803 F. Supp. 2d 16, 29 (D.D.C. 2011) (finding Exemption 7(E)
applicable to USCIS documents); Skinner v. DOJ, 806 F. Supp. 2d 105, 113-16 (D.D.C.
2011) (finding Exemptions 7(C) and 7(E) applicable to USCIS documents).
5
All Vaughn Index page numbers refer to the “Bates Number” that the index uses to identify specific
pages.
6
Although Plaintiff makes this argument only in the context of his discussion of Exemption 7(E), it
applies equally well to the entirety of Exemption 7.
11
Having dispensed with Plaintiff’s erroneous threshold assertion about the blanket
inapplicability of Exemption 7, this Court now focuses on the particular documents that
USCIS withheld in the context of the instant case on Exemption 6 and 7(C) grounds ,
against the backdrop of the legal principles that apply to those FOIA exemptions . It is
well established that whether information was properly withheld under Exemptions 6 or
7(C) depends, first, on whether there is a privacy interest at stake, and second, on
whether the public’s interest in the information outweighs this privacy interest. As
noted above, most of the relevant redactions within the 77 pages concern identifying
information about USCIS or other government employees, such as their name,
signature, and personal database code, and the significant privacy interest at stake when
it comes to the identifying information of government employees in the context of
FOIA requests is beyond dispute. See Brown v. FBI, 873 F. Supp. 2d 388, 404 (D.D.C.
2012) (“Names and/or identifying information are often granted categorical exemption
under 7(C).”); Keys v. DHS, 510 F. Supp. 2d 121, 128 (D.D.C. 2007) (recognizing
significant privacy interest of public servants). Moreover, where the details of third
parties other than law enforcement officials appear in the context of law enforcement
reports and background checks, the D.C. Circuit has recognized that the third party has
a substantial privacy interest in not having his or her name associated with a law
enforcement file. See Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990).
The real dispute between the parties here turns on whether Mezerhane Gosen has
identified any public interest in the disclosure of the redacted information, and if so,
whether that interest outweighs the privacy interest identified above such that it was
improper for the agency to invoke Exemptions 6 and 7(C) to withhold the information.
“[T]he justification most likely to satisfy Exemption 7(C)’s public interest requirement
12
is that the information is necessary to show the investigative agency or other
responsible officials acted negligently or otherwise improperly in the performance of
their duties.” Favish, 541 U.S. at 173. Accordingly, Mezerhane Gosen maintains that
releasing this information will reveal that USCIS violated its own governing statutes
and regulations by, for example, unreasonably delaying notification of his asylum
determination, or by unlawfully conducting background checks after making its asylum
determination. (Pl.’s Mem. at 20-24.) However, as in Mezerhane de Schnapp, this
Court need not delve into which of Plaintiff’s suggested public interests, if any, may
outweigh the privacy interest USCIS has identified because the documents themselves
simply do not shed any light on this matter—Exemptions 6 and 7(C) have been used
here to redact only names and some identifying information, and nothing that could
possibly help to prove or disprove USCIS’s alleged misconduct. See 2014 WL
4436925, at *4 (“Quite simply, the withheld information neither confirms nor refutes
Mezerhane’s allegations of misconduct.”). Because these redactions do not appear to
implicate any public interest at all, USCIS properly applied Exemptions 6 and 7(C).
See Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989)
(“We need not linger over the balance; something, even a modest privacy interest,
outweighs nothing every time.”). 7
B. USCIS Was Justified In Withholding Certain Information Pursuant To
Exemption 7(E)
Exemption 7(E) applies to law enforcement information that “would disclose
techniques and procedures for law enforcement investigations or prosecutions, or would
7
Plaintiff argues that the present case differs from Mezerhane de Schnapp because it alleges a
different, and seemingly more serious, form of government misconduct and therefore implicates a
different (and potentially stronger) public interest in the information. (Pl.’s Resp. to Def.’s Submission
at 3-4.) Even if true, this contention is irrelevant. The nature and seriousness of the alleged
misconduct has no bearing on this Court’s factual finding that the information withheld under
Exemptions 6 and 7(C) does not relate at all to whether or not USCIS engaged in the misconduct.
13
disclose guidelines for law enforcement investigations or prosecutions if such
disclosure could reasonably be expected to risk circumvention of the law[.]” 5 U.S.C.
§ 552(b)(7)(E). “The D.C. Circuit has held that an agency may withhold information
from disclosure where releasing such information would provide insight into its
investigatory or procedural techniques.” Techserve Alliance, 803 F. Supp. 2d at 28-29;
see also Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011) (noting that Exemption 7(E)
offers “a relatively low bar for the agency to justify withholding” information ).
Based on in camera review of the contested documents, this Court finds that
USCIS has redacted two broad types of information under Exemption 7(E): (1)
database information such as codes and descriptions of documents (see e.g., Vaughn
Index at 4-6, 7-9, 10-21, 30-35, 83-108, 110, 129-34, 167, 169), and (2) details about
how USCIS processes asylum cases (see e.g., Vaughn Index at 2, 3, 28, 29, 153-56,
158-59). This kind of information is precisely “the type[] of information contemplated
by the exemption, and . . . properly is withheld under Exemption 7(E).” Ortiz v. DOJ,
No. 12-1674, 2014 WL 4449686, at *9 (D.D.C. Sept. 9, 2014). Indeed, many courts
have upheld the government’s withholding of the same sort of information from the
same databases that are at issue in this case. See, e.g., Skinner v. DOJ, 893 F. Supp. 2d
109, 114 (D.D.C. 2012) (“The Court concludes that the USCIS’s decision to redact the
TECS access codes is appropriate under Exemption 7(E).”), aff’d sub nom., Skinner v.
Bureau of Alcohol, Tobacco, Firearms & Explosives, No. 12-5319, 2013 WL 3367431
(D.C. Cir. May 31, 2013); McRae v. DOJ, 869 F. Supp. 2d 151, 169 (D.D.C. 2012)
(finding Exemption 7(E) properly applied to information from TE CS and NCIC
databases).
14
Perhaps sensing the relative impenetrability of Defendant’s Exemption 7(E)
argument, Plaintiff mostly challenges USCIS’s withholding of information about the
asylum application process, noting that “USCIS has published numerous docu ments
detailing the asylum adjudication process, so these processes are already publicly
known.” (Pl.’s Mem. at 28.) This argument has been raised many times in the context
of Exemption 7(E) and has been rejected just as often. See Barnard v. DHS, 598 F.
Supp. 2d 1, 23 (D.D.C. 2009) (describing this argument as “a familiar one” that “the
Court again rejects”). The mere fact that some information about the asylum process is
available does not automatically prevent USCIS from withholding any information
about the process. See id. (“There is no principle of which the Court is aware that
requires an agency to release all details concerning these and similar [investigatory]
techniques simply because some aspects of them are known to the public.”).
Plaintiff also argues that USCIS has failed to lay out the logical connection
between releasing this information and the creation of a risk that law enforcement
efforts will be circumvented. (Pl.’s Mem. at 26-27.) However, that logic is relatively
simple—as the Mezerhane de Schnapp court noted, there is little doubt that the withheld
information “could enlighten asylum applicants with criminal backgrounds about what
sort of law enforcement information (from which databases) is consulted by USCIS
during adjudication of a pending asylum application—and, of course, by logical
inference, what sort of information is not consulted.” Mezerhane de Schnapp, 2014 WL
4436925, at *2. (See also Def.’s Mem. at 15 (arguing that this information “would
allow an individual to evade law enforcement record checks for purposes of processing
an individual’s immigration petition”).) Consequently, USCIS has easily mounted the
15
“low bar” necessary to justify Exemption 7(E), and is therefore entitled to summary
judgment as to this exemption.
C. Because There Is A Genuine Dispute Of Fact On The Instant Record
Regarding When Asylum Was Granted, Both Parties’ Motions For
Summary Judgment With Respect To The Exemption 5 Withholdings
Must Be Denied
Finally, this Court turns to Plaintiff’s argument with respect to the 22 documents
that claim an Exemption 5 withholding, which is fairly straightforward: if his
application was truly granted in September of 2010, as Plaintiff believes it was (rather
than November 2013, when USCIS says the asylum decision was final) then any
documents that were created after September of 2010 cannot be “predecisional” and
thus the deliberative process privilege cannot apply. (Pl.’s Mem. at 13 -17.) See also
Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006) (“The deliberative
process privilege protects agency documents that are both predecisional and
deliberative.”); Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C.
Cir. 1980) (explaining that a document is predecisional if “it was generated before the
adoption of an agency policy” and it is deliberative if “it reflects the give -and-take of
the consultative process.”). Significantly, each of the 77 contested pages in this case is
dated on or after September 21, 2010—the specific date on which Plaintiff maintains
his asylum application was initially granted—and thus, according to Plaintiff, none of
the withholdings on Exemption 5 grounds in the 22 pages that contain such
withholdings are proper.
During its in camera review, this Court isolated and considered the 22 disputed
pages that contain Exemption 5 withholdings. Three documents, totaling 13 pages, are
essentially written reports of asylum officers. These reports—a statement of findings,
an application processing worksheet, and an asylum officer’s referral assessment—each
16
contain the officer’s summary of Plaintiff’s application as well as a recommendation as
to how to proceed. (See Vaughn Index at 7-9, 153-56, 257-62.) An additional four
documents, totaling 4 pages, are either instructions for further processing of Plaintiff’s
application (in the form of a cover letter and interoffice memorandum) or requests for
further processing (in the form of two emails). (See id. at 2, 3, 28, 29.) Two
documents, totaling 2 pages, are really the same document —a quality assurance referral
sheet—just completed on two different dates. This sheet contains a checklist of factors
that may trigger further review of Plaintiff’s application, and Exemption 5 has been
invoked to withhold which of the fourteen boxes have been marked. (See id. at 1, 157.)
Finally, there is a background check, totaling 3 pages, in which Exemption 5 has been
used to withhold information received from various law enforcement officers about
Plaintiff’s application. (See id. at 4-6.) In accordance with Defendant’s Exemption 5
contentions, none of these documents suggest that Plaintiff’s application was granted in
September of 2010. Furthermore, each of these documents reflect the personal opinion
of the asylum officer (or other government officials in the case of the backgroun d
check) and many contain clear recommendations. As such, the Court’s review of these
documents, along with the affidavits that USCIS has submitted, generally supports
USCIS’s position that these 22 documents were properly redacted pursuant to
Exemption 5. See Dep’t of Interior v. Klamath Water Users Protective Ass'n , 532 U.S.
1, 8 (2001) (holding that “deliberative process covers documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated” (internal quotation marks and
citation omitted)).
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However, Plaintiff points to specific evidence that does call into question
USCIS’s claim that Mezerhane Gosen’s asylum application was granted in November of
2013, and thus that the 22 documents are predecisional. First, and most significantly,
there is the cryptic database screenshot that is, apparently, from USCIS’s Refugees,
Asylum and Parole System (RAPS), a database which kee ps track of asylum
applications. (Decl. of Varsenik Papazian (“Papazian Decl.”), ECF No. 24 -1, ¶ 6.) As
noted above, this screenshot, which was contained in USCIS’s initial release of
documents in response to Plaintiff’s FOIA request, identifies Plaintiff and then states
“CURRENT STATUS: ASYLUM GRANTED” and “FINAL DECISION: GRANTED.”
(RAPS Screenshot at 3.) Next to the second of these statements, the document has
“DATE: 9/21/2010.” (Id.) 8
Second, Plaintiff references an incident in August of 2013, in which Mezerhane
Gosen’s son-in-law—whose asylum application relied on Mezerhane Gosen’s claim of
political persecution—was told by an immigration official that he should have applied
for travel documentation that is only available to a person whose asylum application has
been granted, even though the son-in-law had not, at that time, received any word that
he had been granted asylum. (Affidavit of Roberto Andres Schnapp Gabor, Exh. F to
Pl.’s Mem., ECF No. 20-5, at 10.) The Court considered precisely this evidence in
Mezerhane de Schnapp and reasoned that this evidence was corroborated by the record
8
USCIS argues that this screenshot reflects the proposed decision of the asylum off icer assigned to
Plaintiff’s case, not a final decision (Def.’s Reply at 3; Papazian Decl. ¶ 11.), because certain
applications, apparently including Plaintiff’s, are subject to further review by “Asylum Headquarters.”
(Papazian Decl. ¶¶ 8-9.) In this regard, despite the plain text of the screenshot, USCIS maintains that
the screenshot was printed and included in Plaintiff’s A -File at some point after the asylum officer had
made his or her recommendation but before Asylum Headquarters reviewed the decisio n, and therefore,
the document merely reflects the asylum officer’s proposed decision. (Def.’s Reply at 3; Papazian
Decl. ¶ 12.)
18
and was inconsistent with the government’s suggested timeline. 2014 WL 4436925, at
*6-*7.
This Court also takes judicial notice of a third, and related, piece of evidence
that was offered to cast doubt on USCIS’s Exemption 5 justification in Mezerhane de
Schnapp—in 2013, a customs agent reportedly told the attorney of Mezerhane Gosen’s
son-in-law (who is also the attorney of Mezerhane Gosen in this matter) that his asylum
application had been granted in 2010. See Mezerhane de Schnapp, 2014 WL 4436925,
9
at *7 (describing contents of affidavit). It is true that the plaintiff here has not offered
this latter piece of evidence in the instant context, but this evidence also has not been
refuted, even in the face of the Mezerhane de Schnapp court’s specific assertion that
“Mezerhane’s evidence stands virtually unchallenged—[i.e.,] USCIS does not deny that
the conversations took place as remembered by the various affiants[.]” 2 014 WL
4436925, at *8.
Even if the customs agent evidence is set aside, this Court agrees with the
Mezerhane de Schnapp court’s statement that, “on the present record, one can come to
more than one conclusion about when USCIS made a decision on Mezerhane’ s asylum
application and, in turn, whether these documents are predecisional, and protected by
the deliberative-process privilege.” Put another way, although the documents withheld
appear to be deliberative, Plaintiff has raised sufficient doubt about the timing of the
asylum decision such that it cannot be established one way or the other, based on the
current record, that the withheld documents are predecisional. Consequently, this Court
9
Although this evidence was not presented in this case, it arises from a sworn affidavit contained in
public court documents. As such, it appears that this Court is free to take judicial notice of this
affidavit. See Vince v. Mabus, 956 F. Supp. 2d 83, 88 (D.D.C. 2013) (“A court may take judicial notice
of public records from other proceedings.”); Rimkus v. Islamic Republic of Iran, 750 F. Supp. 2d 163,
171 (D.D.C. 2010) (finding scope of judicial notice “extends to judicial notice of court records in
related proceedings”).
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has no choice but to join the court in Mezerhane de Schnapp in denying both motions
for summary judgment as to Exemption 5.
IV. CONCLUSION
USCIS has adequately justified its invocation of Exemptions 6, 7(C), and 7(E) ;
the applicability of Exemption 5 is all that genuinely remains in dispute. Based on this
Court’s in camera review of the 22 pages that contain Exemption 5 redactions, at least
some of the redacted information in those 22 pages is also withheld under other
exemptions. This Court encourages the parties to engage in further negotiations
regarding the remaining contested documents. If such negotiations are unavailing, the
parties will be required to refile their motions for summary judgment with respect to the
Exemption 5 withholdings, along with any additional information that will shed light on
the remaining factual dispute.
DATE: December 4, 2014 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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