Abtew v. United States Department of Homeland Security
420 U.S. App. D.C. 356
| D.C. Cir. | 2015Background
- Anteneh Abtew, an Ethiopian national unlawfully in the U.S., applied for asylum claiming past torture and fear of future persecution.
- DHS interviewed Abtew and prepared an "Assessment to Refer" summarizing the interview, assessing credibility, and recommending whether to grant asylum; a supervisor made the final referral decision.
- Abtew filed a FOIA request seeking the Assessment; DHS withheld it under FOIA Exemption 5, invoking the deliberative process privilege.
- Abtew sued in district court; the district court upheld DHS’s withholding under Exemption 5.
- While Abtew’s immigration proceedings remain pending, he also argued entitlement to the Assessment under immigration-proceeding disclosure rules; the court declined to resolve that issue here.
Issues
| Issue | Abtew's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether the Assessment to Refer is exempt under FOIA Exemption 5 (deliberative process privilege) | Assessment is not exempt; it should be disclosed | Assessment is pre-decisional and deliberative, thus protected | Court: Exemption 5 applies; document is pre-decisional and deliberative and therefore exempt |
| Whether the supervisor's initials on the Assessment converted it into a final agency decision (adoption) | Initialing shows supervisor adopted the Assessment as the final decision | Initialing does not necessarily adopt the memo or its reasoning; the Referral Notice was the final decision | Court: Initialing alone does not show adoption; Referral Notice, not the Assessment, was the final decision |
| Whether the Assessment is non-deliberative because there was no "give-and-take" | No genuine deliberative back-and-forth occurred; document is factual or final | The Assessment was a recommendation to a supervisor and is classic deliberative material | Court: Assessment is deliberative — a recommendation prepared as part of the supervisory decisionmaking process |
| Whether DHS is judicially estopped or waived Exemption 5 by releasing similar Assessments elsewhere | DHS has previously released similar Assessments, so it cannot claim the privilege now | Prior releases in other litigation do not forfeit Exemption 5 here; no estoppel applies | Court: No judicial estoppel or automatic waiver; agencies don’t forfeit FOIA exemptions simply by releasing similar documents in other contexts |
| Whether Abtew can obtain the Assessment under immigration-proceeding disclosure rules (8 U.S.C. § 1229a) | Abtew is entitled to examine evidence against him, which may include the Assessment | Any discovery or disclosure claim should be raised before the immigration judge in the removal proceeding | Court: Not decided here; procedural-disclosure claim belongs to the immigration proceeding and can be raised/appealed there |
Key Cases Cited
- Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (privilege protects candid intra-agency deliberations)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (distinguishing deliberative recommendations from final agency action)
- Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (pre-decisional and deliberative test for Exemption 5)
- Vaughn v. Rosen, 523 F.2d 1136 (definition of deliberative documents and give-and-take requirement)
- Afshar v. Department of State, 702 F.2d 1125 (discussing when agency adoption can waive Exemption 5)
- New Hampshire v. Maine, 532 U.S. 742 (doctrine of judicial estoppel)
- Army Times Publishing Co. v. Department of the Air Force, 998 F.2d 1067 (agency’s prior disclosures in other contexts do not automatically waive FOIA exemptions)