Abtew v. United States Department of Homeland Security
2014 U.S. Dist. LEXIS 80469
| D.D.C. | 2014Background
- Abtew, an Ethiopian national, sought FOIA to obtain the Assessment and AO notes from USCIS regarding his asylum application.
- The AO prepared a four-page Assessment recommending denial and referral to immigration court; supervisor initials followed.
- The Assessment was placed in Abtew’s file and not disclosed to him; a Referral Notice was issued indicating denial and referral for de novo review.
- USCIS later issued a Referral Notice which Foreign the final decision to deny asylum and refer to immigration court; the AO’s Assessment remained withheld under Exemption 5.
- Abtew’s FOIA suit challenged withholding under Exemption 5 and sought to compel disclosure, while Count III alleged a rights violation under 8 U.S.C. § 1229a(b) for failing to provide the Assessment; the Court conducted in camera review and partially granted relief.
- The Court held the Assessment is predecisional and deliberative, protected by Exemption 5, but the first six paragraphs are reasonably segregable and must be disclosed; Count III was found not ripe.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exemption 5 covers the Assessment. | Abtew argues Exemption 5 cannot apply. | DHS contends the Assessment is deliberative and predecisional. | Yes, Exemption 5 covers it; however, segregable non-deliberative material must be released. |
| Whether the first six paragraphs are segregable from the deliberative portions. | Six paragraphs contain factual recitation; may be non-deliberative. | Most content is interwoven with deliberative material. | The first six paragraphs are segregable and must be disclosed; remaining portions may be withheld. |
| Whether 8 U.S.C. § 1229a(b)(4)(B) makes disclosure of the Assessment a ripe issue. | Disclosure is necessary to protect rights in immigration proceedings. | Rights under §1229a(b)(4)(B) are not triggered until use in proceedings. | Count III is not ripe and dismissed. |
| Whether the Assessment, if relied upon in immigration court, would waive the privilege. | Future use would remove deliberative cloak. | Future reliance does not automatically waive the privilege; no current use occurred. | Privilege remains unless and until the Assessment is actually used in proceedings. |
Key Cases Cited
- Judicial Watch, Inc. v. FDA, 449 F.3d 141 (D.C. Cir. 2006) (deliberative process privilege requires predecisional and deliberative content)
- Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) (deliberative process privilege; give-and-take discussions in policy formation)
- Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) (non-exempt portions must be disclosed unless inextricably intertwined with exempt parts)
- Public Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865 (D.C. Cir. 2009) (deliberative process privilege protections described; segregability analysis)
- Klamath Water Users Protective Ass’n v. U.S. Bureau of Reclamation, 532 U.S. 1 (U.S. 2001) (frame for Exemption 5 coverage: inter-agency communications privilege applies when source is an agency and within judicial standards)