Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________
)
ANTENEH ABTEW, )
)
Plaintiff, )
) v. ) Civil Action No. 13-1566 (ABJ) )
UNITED STATES DEPARTMENT )
OF HOMELAND SECURITY, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
In this сase, plaintiff Anteneh Abtew asks the Court to order defendant Department of Homeland Security to provide the Assessment to Refer (“Assessment”) prepared by the asylum officer who conducted the initial review of plaintiff’s asylum application as well as the asylum officer’s notes pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012), (Counts I and II). Compl., Prayer for Relief, ¶¶ a, b, d, e [Dkt. # 1]. The complaint also seeks a declaratory judgment that defendant’s withholding of the Assessment and notes violated plaintiff’s rights under 8 U.S.C. § 1229a(b) (2012) (Count III). ¶¶ c, f.
During the pendency of the case, defendant released the asylum officer’s notes to the plaintiff, rendering Count I moot. The parties then filed cross-motions for summary judgment on the remaining two counts. Pl.’s Mot. for Summ. J. (“Pl.’s Mot.”) [Dkt. # 17]; Def.’s Mem. in Supp. of its Mot. for Summ. J. & Opp. to Pl.’s Mot. (“Def.’s Mot.”) [Dkt. # 23]. After a review of the Assessment in camera , the Court finds that the Assessment is protected by the deliberative process privilege and that the privilege has not been waived. It also finds, however, that the initial factual recitation contained in the first six paragraphs is not deliberative and is reasonably *2 segregable from the deliberative portion of the document. As a result, the Court will grant defendant’s motion for summary judgment in part and deny it in part, and it will grant plaintiff’s motion for summary judgment in part and denying it in part with respect to Count II. The Court will also dismiss Count III because it is not ripe.
BACKGROUND
I. LEGAL FRAMEWORK
A. The asylum application process.
Individuals seeking asylum in the United States may file an application for asylum with the United States Citizenship and Immigration Services (“USCIS”), which is a component of the Department o f Homeland Security (“DHS”). Def.’s Statement of Material Facts as to which there is no Genuine Dispute (“Def.’s SOF”) ¶ 4 [Dkt. # 23]. USCIS then reviews the application and decides whether it should be granted or denied. If the application is granted, the individual is permitted to stay in the United States. If USCIS determines that it cannot grant the application, it will notify the individual of that decision, and what happens next depends on whether the applicant was legally (“in - status”) or illegally (“out -of- status”) in the United States at the time the asylum application was filed. Def. ’s SOF ¶¶ 2, 6.
Asylum applicants who are in-status are sent what is called a Notice of Intent to Deny ( “ NOID ” ). Id. ¶ 16. The NOID explains that USCIS cannot approve the asylum application, and it notifies the applicant that he or she has sixteen days to respond to the NOID by submitting additional information and supporting documents. ¶¶ 17 18; Pl.’s Statement of Material Facts not in Dispute (“Pl.’s SOF”) ¶ 15 [Dkt. # 18]. If, after the submission of additional material, USCIS continues to believe the asylum application should be denied, the asylum officer (“AO”) assigned to the case (subject to approval by the Supervisory AO) will advise the alien *3 that the application has been denied. Def.’s SOF ¶ 19. An in-status alien whose application has been denied does not have any right to further review of the denial. Id. ¶ 20.
If the applicant is out-of-status, on the other hand, the AO prepares what is called an “Assessment to Refer” (“Assessment”) instead of a NOID. The Assessment includes the AO’s recommendation that the application be denied and that the out-of-status applicant be referred to the immigration court for removal proceedings. Def.’s SOF ¶ 8; Pl.’s SOF ¶¶ 2– 5. The Assessment also includes the reasoning underlying the AO’s recommendation . Pl.’s SOF ¶ 8.
After the AO drafts the Assessment, the Supervisory AO reviews and initials the document. Def.’s SOF ¶ 8; Pl.’s SOF ¶ 2. The Assessment is then placed in the asylum applicant’s file, and the file is transferred to the DHS lawyer who will represent the government at the immigration court proceeding. Def.’s SOF ¶ 9; Pl.’s SOF ¶ 4. The Assessment is not provided to the asylum applicant. Def.’s SOF ¶ 9. Instead, USCIS generates a Referral Notice, which informs the out-of-status applicant that USCIS cannot grant the asylum request and that the case was referred to the immigration court. Id. ¶ 10; Pl.’s SOF ¶ 5. The Referral Notice also informs the applicant of the reasons for the denial of the application and of the right to renew the asylum request before the immigration court, which will conduct a de novo review. Def.’s SOF ¶ 12. If the immigration judge denies the asylum application, the alien can appeal that decision to the Board of Immigration Appeals, and then to thе Court of Appeals. ¶ 15.
At the de novo immigration proceeding before the immigration court , the alien’s statutory rights are governed by 8 U.S.C. § 1229a. Among those rights, and most pertinent to this case, is the requirement that “ the alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross examine witnesses presented by the Government .” 8 U.S.C. § 1229a(b)(4)(B).
A DHS lawyer may – but is not required to – present the Assessment prepared by the AO as evidence at the immigration proceeding. Pl.’s SOF ¶ 10; Def.’s SOF ¶ 14. If the lawyer elects to do so, then section 1229a(b)(4)(B) requires that the alien be accorded a reasonable opportunity to examine the Assessment. Def.’s SOF ¶ 14.
II. FACTUAL BACKGROUND
Plaintiff Anteneh Abtew is a native and citizen of Ethiopia. Pl.’s SOF ¶ 1. On February 17, 2012, he arrived in the United States on a tourist visa, which has since expired. Id. ; Def.’s SOF ¶ 3. He applied for asylum in the United States with USCIS as an out-of-status applicant, and on October 9, 2012, an AO in the Arlington Asylum Office interviewed him about his application . Pl.’s SOF ¶ 1. During the intеrview, the AO and plaintiff communicated through an interpreter, and the AO took notes. Id.
After the interview, the AO prepared a four-page Assessment. ¶¶ 2 –3; Def’s SOF ¶ 6. The Assessment memorialized the AO’s recommendation that plaintiff’s asylum application should be denied , and after review, the AO’s supervisor initialed it . Pl.’s SOF ¶ 2; Def. ’s SOF ¶¶ 6 7. The Assessment was then placed into plaintiff’s file, and that file was transferred to the DHS lawyer who will represent the United States at plaintiff’s immigration proceeding . Pl.’s SOF ¶ 4; Def.’s SOF ¶ 9. Plaintiff was not provided a copy of the Assessment. Def.’s SOF ¶ 9.
USCIS then generated a Referral Notice, informing plaintiff of USCIS ’s decision. The Referral Notice stated that USCIS reached its decision because of “[m]aterial inconsistency(ies) between [ plaintiff’s ] testimony and application and/or other evidence[,] [m]aterial inconsistency(ies) within [ plaintiff’s ] testimony[,] [and] [l]ack of detail(s) on material points .” Because plaintiff’s visa expired prior to the filing of his application for asylum, he is considered an out-of-status applicant.
Referral Notice, Ex. E to Decl. of Jill Eggleston, Ex. A to Def.’s Mot. (“Referral Notice”) [Dkt. # 23-1]; see also P l.’s SOF ¶ 5; Def.’s SOF ¶ ¶ 10 – 11. It also informed plaintiff of the next steps in the process: that the asylum case would be referred to an immigration judge for further proceedings, that the referral is not a denial of the asylum application, and that USCIS’s initial decision to deny the petition is not binding on the immigration judge, who will conduct a de novo review of plaintiff’s request . Referral Notice; see also Def.’s SOF ¶ 12. Plaintiff’s immigration court proceeding is scheduled for February 18, 2015. Pl.’s SOF ¶ 9.
On November 11, 2012, plaintiff submitted a FOIA request to obtain a copy of the Assessment as well as the notes the AO took during plaintiff’s interview. Pl.’s FOIA Request, Ex. A to Decl. of Jill Eggleston, Ex. A to Def.’s Mot. [Dkt. # 23-1]. In response, defendant produced ninety-two pages in their entirety and five pages in part, while withholding twenty- three pages in full under FOIA Exemptions 5, 6, 7C, and 7E. Resp. to Pl.’s FOIA Request, Ex. C to Decl. of Jill Eggleston, Ex. A to Def.’s Mot. [Dkt. # 23-1]. Plaintiff appealed the withholdings, Pl.’s FOIA Appeal, Ex. D to Decl. of Jill Eggleston, Ex. A to Def.’s Mot. [Dkt. # 23-1], and that appeal was denied. Appeal Denial Letter, Ex. E to Decl. of Jill Eggleston, Ex. A to Def.’s Mot. [Dkt. # 23-1].
Plaintiff thеn filed this FOIA action against DHS, seeking to obtain (1) the notes of the AO and (2) the Assessment, Compl. ¶¶ 54 – 59, as well as a declaration that the continued withholding of those documents violated plain tiff’s rights under 8 U.S.C. § 1229a(b). ¶¶ 60 – 65. Defendant subsequently released the notes to plaintiff rendering Count I moot – but it continued to invoke the deliberative process privilege to withhold the Assessment. Def.’s Answer at 1 [Dkt. # 15]. The parties filed cross-motions for summary judgment, and the Court ordered production of the Assessment for in camera review.
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any ma terial fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The party seeking summary judgment bears the “initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex
Corp. v. Catrett
, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat
summary judgment, the non- moving party must “designate specific facts showing that there is a
genuine issue for trial.”
Id.
at 324 (internal quotation marks omitted). The existence of a factual
dispute is insufficient to preclude summary judgment.
Anderson v. Liberty Lobby, Inc.
, 477 U.S.
242, 247 –48 (1986). A dispute is “genuine” only if a reasonable fact -finder could find for the
non- moving party; a fact is only “material” if it is capable of affecting the outcome of the
litigation. at 248;
Laningham v. U.S. Navy
,
“The rule governing cross -motions for summary judgment . . . is that neither party waives
the right to a full trial on the merits by filing its own motion; each side concedes that no material
facts are at issue only for the purposes of its own motion.”
Sherwood v. Wash. Post
, 871 F.2d
1144, 1148 n.4 (D.C. Cir. 1989), quoting
McKenzie v. Sawyer
, 684 F.2d 62, 68 n.3 (D.C. Cir.
1982). In assessing each party’s motion, “[a]ll underlying facts and inferences are analyzed in
the light most favorable to the non- moving party.”
N.S. ex rel. Stein v. District of Columbia
, 709
F. Supp. 2d 57, 65 (D.D.C. 2010), citing
Anderson
,
ANALYSIS
The cross-motions for summary judgment raise two issues: first, the Court must determine whether defendant properly invoked FOIA Exemption 5 to deny plaintiff’s request for *7 the Assessment completed in connection with his asylum petition, and if so, whether defendant reasonably segregated all nonexеmpt material from that document (Count II). And second, the Court must decide whether the withholding of the Assessment violates pla intiff’s rights under 8 U.S.C. § 1229a(b)(4)(B) (Count III).
I. Exemption 5 covers the Assessment in this case.
FOIA Exemption 5 bars disclosure of “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). A document may be properly withheld under Exemption 5 only
if it satisfies “ two conditions: its source must be a [g]overnment agency, and it must fall within
the ambit of a privilege against discovery under judicial standards that would govern litigation
against the agency that holds it.”
U.S. Dep’t of Interior v. Klamath Water Users Protective
Ass’n
, 532 U.S. 1, 8 (2001). This Circuit has interpreted Exemption 5 “to encompass the
protections traditionally afforded certain documents pursuant to evidentiary privileges in the civil
discovery context, including materials which would be protected under the attorney-client
privilege, the attorney work-product privilege, or the executive del iberative process privilege.”
Formaldehyde Inst. v. Dep’t of Health & Human Servs.
,
Here, defendant invokes Exemption 5 to justify its withholding of the Assessment, stating that the document falls under the executive deliberative process privilege. Def.’s Mot. at 5 . Plaintiff advances nine arguments as to why Exemption 5 cannot be invoked in this case . Pl.’s Mot. at 8 30. These arguments can be organized into two categories: (A) those that claim that the deliberative process privilege, and therefore Exemption 5, do not cover the Assessment; and *8 (B) those that posit that even if the Assessment is covered by the deliberative process privilege, defendant still cannot invoke Exemption 5 to justify its withholding the Assessment. Neither category of arguments withstands scrutiny.
A. The Assessment falls within Exemption 5 because it is protected by the deliberative process privilege.
“The deliberative process privilege rests on the obvious realizati on that officials will not
communicate candidly among themselves if each remark is a potential item of discovery,” and its
purpose “is to enhance ‘the quality of agency decisions’ by protecting open and frank discussion
among those who make them within the [g]overnment.”
Klamath
, 532 U.S. at 8 – 9 (internal
quotation marks and citations omitted). As a result, it only “ protects agency documents that are
both predecisional and deliberative.”
Judicial Watch, Inc. v. FDA
,
Plaintiff does not contest that the Assessment satisfies the first condition of Exemption 5 that the document withheld be an inter-agency or intra-agency memorandum or letter. See Pl.’s Mot. at 8– 30. As a result, the Court finds that requirement is satisfied in this case.
Applying that framework here, the Court finds that the Assessment is predecisional and deliberative, and that it therefore falls under the deliberative process privilege. In a declaration submitted along with defendant’s cross -motion for summary judgment, Jill A. Eggleston – the Assistant Center Director in the FOIA and Privacy Act Unit, National Records Center, USCIS explains that the Assessment at issue in this case is a document that “predates USCIS’s decision to not grant asylum to the Plaintiff,” and that “[t]he document f orms the basis for the decision to not grant the Plaintiff asylum and instead refer him to an immigration judge for removal proceedings.” Decl. of Jill A. Eggleston (“Eggleston Decl.”), Ex. A to Def.’s Mot. ¶¶ 1, 17 [Dkt. # 23-1]. She also explains that the AO writes the Assessment “in narrative form, and explains the officer ’ s concerns, discusses possible legal insufficiencies in thе application, and the reasons for the decision to refer the case to the immigration court ,” which makes it an “ essential part of the USCIS deliberative process that leads to the ultimate determination to deny an alien’s application for asylum” and to instead refer the out-of-status applicant for removal proceedings. ¶ 17.
In other words, the Eggleston declaration verifies that the AO writes the Assessment
before a final decision is made; that the Assessment is an essential tool in making that decision;
Plaintiff argues that the Court cannot rely on the Eggleston Declaration because
Eggleston did not state that she has any personal knowledge of the procedures inside an asylum
office or that she read the Assessment in this case. Pl .’s Opp. to Def.’s Mot. (“Pl.’s Opp.”) at 4
[Dkt. # 26] . But as another court in this district previously explained, the “extent of Eggleston’s
knowledge of the asylum process is largely irrelevant. What matters is her capacity to explain
the legal basi s for the defendant’s withholding of the assessment under the FOIA.”
Anguimate v.
U.S. Dep’t of Homeland Sec.
, 918 F. Supp. 2d 13, 19 (D.D.C. 2013). Moreover, the last
paragraph of the declaration explains that the Assessment is fully described in the declaration,
that she is familiar with the matters described in the declaration, and that she can “attest to the
accuracy of the document descriptions and applicability of the FOIA exemptions asserted.”
Eggleston Decl. ¶ 20. This is sufficient for the Court to be able to rely on the declaration.
See
Anguimate
,
and that the Assessment includes the AO’s personal thoughts about the merits of the asylum
case. It is therefore both predecisional and deliberative, bringing it under the protection of the
deliberative process privilege.
See Abramyan v. U.S. Dep’t of Homeland Sec.
, No. 12-1064,
2013 WL 6247338, at *6 (D.D.C. Dec. 4, 2013) (holding that the Assessment to Refer in that
Plaintiff argues that the Assessment is not deliberative because it does not reflect the
give-and-take of the consultative process, since the AO writes the document on his or her own.
Pl.’s Opp. at 4– 5, 11 12. But this is an overly narrow view of what can be part of the
deliberative process. The Assessmеnt transmits the AO’s thoughts to a supervisory official and
it is a step leadi ng to the issuance of a decision; just because it includes the “give,” but not the
“take,” does not take it outside the scope of the conversation. And as plaintiff acknowledges,
protecting the give-and-take of the consultative process is only one of the reasons for the
privilege, and a document is considered deliberative if it includes recommendations for how a
decision should be made, which the Assessment does.
See Coastal States
,
Similarly, plaintiff ’ s argument that deliberative process privilege should not apply to this
case because the frequent disclosure of Assessments in immigration courts cuts against the need
to protect the internal discussions of AO officers also fails. Pl.’s Opp. at 5, 12–13; Pl.’s Reply in
Supp. of Pl.’s Mot. (“Pl.’s Reply”) at 1, 3, 16 [Dkt. # 25]. Putting aside the realization that just
because a privilege is waived in one context does not mean that it is less important in another
context, the Court cannot force disclosure under FOIA on this ground alone. As another court in
this district has recognized, the D.C. Circuit has instructed district courts not “to ‘second -guess
. . . congressional judgment’” that a document is subject to the protections of the deliberative
process privilege “‘on a case -by-case ba sis’; rather, once it is determined tha t the two elements
of the deliberative process privilege are satisfied, the judicial inquiry is complete.”
Anguimate
,
case was both predecisional and deliberative); Anguimate v. U.S. Dep’t of Homeland Sec. , 918 F. Supp. 2d 13, 18 – 21 (D.D.C. 2013) (same).
Plaintiff’s arguments do not alter that conclusion. First, he argues that the Assessment is
a final, post-decision document because it was initialed by the Supervisory AO and sent to a
DHS lawyer who would represent the government in plaintiff’s removal proceeding before the
immigration court. Thus, he contends that the Assessment is the document that “ disposes ” of
plaintiff’s request for asylum to the extent that it is before USCI S. Pl.’s Mot. at 18– 19. But the
document cannot be postdecisional in the literal sense of the word because the AO drafted it
before the final decision was made, and the requirement that the Supervisory AO review the
Assessment dоes not somehow transform it into a “final agency” decision just because the
supervisor initialed it; the Supervisory AO’s initials are not just a “rubber stamp.”
See
Abramyan
,
officially disposes of the asylum petition on behalf of USCIS. Eggleston Decl. ¶ 17 (“The Agency’s final decision is the Referral Notice, which is signed by the [Supervisory AO] for the Director of Asylum Office.”).
The cases plaintiff relies on to support his point that the Assessment is the final decision
that disposes of the case do not support his position.
See
Pl.’s Mot. at 18– 20. It is true that the
Supreme Court has held that Exemption 5 cannot be invoked to withhold documents that must be
disclosed under section 552(a)(2)(A),
see NLRB v. Sears, Roebuck & Co.
,
Liberties Union Found., Inc. v. Sigler , 390 F. Supp. 789 (D.D.C. 1975) (finding that a written denial of parole is a final order for purposes of FOIA). Neither of those situations is present here: the denial of plaintiff’s asylum application initiates and does not conclude judicial proceedings and, although the AO investigated plaint iff’s asylum request and compared differe nt factual claims, it does not rise to the level of an “adjudication” because the matter will be determined de novo in the immigration court.
Moreover, the other three cases to which plaintiff refers deal with documents that set
forth the agency’s interpretation of its regulations or statutes in the context of a particular set of
facts.
See Schlefer v. United States
,
And finally, t he Supreme Court’s holding in
NLRB v. Sears, Roebuck & Co.
– the case
that established the rule that Exemption 5 cannot justify withholding documents that must be
released under section 552(a)(2)(A) – actually supports the continued withholding of the
Assessment under Exemption 5 in this case. In
Sears
, the Supreme Court addressed whether an
Advice and Appeals Memorandum (“AAM”) issued by the General Counsel of the National
Labor Relations Board (“NLRB”) regarding whether he would file a complaint based on a
privatе party’s report of a potential NLRA violation co uld be withheld as an intra-agency
memorandum under Exemption 5 or whether it was a “final opinion” as defined in 5 U.S.C.
§ 552(a)(2)(A).
Here, the Assessment is similar to the AAM that authorized the filing of an NLRA complaint: the Assessment does not mark the end of plaintiff’s asylum petition or subject him to a final determination of his status that can only be challenged on appeal. Instead, it requires the case to go forward to the immigration court for removal proceedings and a de novo determination of plaintiff’s asylum petition by that judge. Accordingly, the Court finds that the Assessment is not a document that is required to be disclosed under section 552(a)(2)(A) and *15 therefore that the section has no impact on defendant’s ability to invoke Exemption 5 to withhol d the Assessment in this case.
Plaintiff’s second argument – that, even if the Assessment was predecisional at one time, it lost that status when it was adopted as the position of the agency, Pl.’s Mot. at 20– 21 – also fails. There is nothing in the record that supports the conclusion that the Assessment was adopted as the agency’s final decision. As an initial point, it does not automatically follow that just because US CIS rejected plaintiff’s request for asylum, it f ormally or informally adopted the Assessment as its final decision. Compare Am. Soc’y of Pension Actuaries v. IRS , 746 F. Supp. 188, 191 (D.D.C. 1990) (“[T]he simple fact that an intra -agency deliberative memorandum reaches the same conclusiоn as the ultimate decision-maker provides no guarantee that the memorandum represents the views actually adopted by the government.”); see also id. (noting that certain documents that were deliberative were nonetheless available under FOIA because the government adopt ed the $666 million dollar figure and “when . . . the government states a budget estimate with numerical specificity, the public is entitled to presume that a particular set of calculations and assumptions underlie the estimate,” even if not specifically m entioned in the final order). The Referral Notice – which informed plaintiff of US CIS’s decision to deny his request does not mention or incorporate the Assessment, see Referral Notice, and there is no evidence to show that, other than adopting the general recommendation to deny plaintiff’s For this reason, the Court is not persuaded by plaintiff’s argument that defendant’s statement of material facts in dispute supports his contention that the Assessment is the final decision of USCIS: “When this assessment was approved by [the AO’s supervi sor, the supervisor] initialed it, and it became USCIS’s decision that Abtew’s asylum application should be addressed in [immigration [sic] court.” Pl.’s Opp. at 2, quoting Def.’s SOF ¶ 8. But the statement quoted does not say that the Assessment was the final decision as plaintiff suggests; instead, the statement provides that the recommendation to deny plaintiff’s asylum request, which is set forth in the Assessment, became the agency’s final decision, but not necessarily the underlying reasons.
asylum request at this stage, the agency adopted all of the reasons that the AO included in the
Assessment.
[8]
Cf. Coastal States
,
Furthermore , plaintiff’s reasoning that the Assessment was adopted as the official agency
position because it is now in the hands of the DHS lawyer who is responsible for representing the
governm ent at plaintiff’s immigration proceeding is one step ahead of the facts. His argument is
premised on a quotation taken from
Coastal States
: “ [E]ven if the document is predecisional at
the time it is prepared, it can lose that status if it is adopted, formally or informally, as the agency
position on an issue or is used by the agency in its dealing with the public. ” Pl.’s Mot. at 21,
8
For this reason,
Tax Analysts
,
issued to an asylum applicant who makes the request at the time he or she is still legally within the country. It is a final decision, save the appeal process, and does not result in a de novo immigration c ourt proceeding. Put differently, the NOID itself is the agency’s final decision. As a result, it would not be covered by the deliberative process privilege, making a comparison between it and an Assessment of limited value here.
quoting Coastal States , 617 F.2d at 866. Plaintiff thus maintains that “[i]f the DHS uses a document in Immigration Court, the document is public.” Id. But the document has not been used in immigration court as of the date of this opinion, and the claim that it will be used in the future is speculative. A DHS lawyer is not required to introduce an Assessment at the removal proceeding. [10] The Assessment therefore retains its predecisional and deliberative status, making it subject to the protections of the deliberative process privilege and permitting defendant to assert Exеmption 5 to justify its withholding.
B. Plaintiff’s remaining arguments for why the Court should not allow defendant to invoke FOIA Exemption 5 to withhold the Assessment are unpersuasive. Plaintiff offers seven reasons why Exemption 5 cannot be invoked to withhold the Assessment in this case, but none of them alter the result.
First, plaintiff argues that documents that are routinely available through civil discovery “must also be disclosed under FOIA.” Pl.’s Mot. at 8; Pl.’s Opp. to Def.’s Mot. (“Pl.’s Opp.”) at 4 [Dkt. # 26] ; Pl.’s Reply in Supp. of Pl.’s Mot. (“Pl.’s Reply”) at 5 6 [Dkt. # 25]. Although plaintiff is correct that “the parameters of Exemption 5 are determined by the reference to t he protections available to litigants in civil discovery,” Burka v. U.S. Dep’t of Health & Human Servs. , 87 F.3d 508, 516 (D.C. Cir. 1996), the deliberative process privilege protects against disclosure of a document in civil discovery. As a result, the Court’s conclusion that the deliberative process privilege applies to the Assessment forecloses this argument.
10 Similarly, plaintiff ’s argument that the government cannot argue that the Assessment is not final here because it may later argue that the Assessment is authoritative and should carry weight in the immigration proceeding is unpersuasive. See Pl.’s Mot. at 12; Pl.’s Reply at 10. In any event, if the Assessment is expressly relied upon, it will be produced. Plaintiff cannot get around this conclusion by characterizing his FOIA request as one for
“alleged ‘prior inconsistent statement’ or a transcript of a deposition,” Pl.’ s Reply at 5, because it is not a verbatim tran script of plaintiff’s interview. See Eggleston Decl. ¶ 17.
Plaintiff’s second argument is that 8 U.S.C. § 1229a (b) blocks invocation of Exemption 5 because that “statute compels the DHS to share the assessment with” plaintiff before it is offered into evidence , and FOIA’s exemptions may not block a disclosure that is statutorily required. Pl.’s Mot. at 9– 10. But pla intiff’s argument is once more premature. Section 1229a(b)(4)(B) provides that, at the immigration proceeding, an “alien shall have a reasonable opportunity to examine the evidence against the alien.” 8 U.S.C. § 1229a(b)(4)(B) . Any “right” th at attaches under that section exists because the evidence is, or will be, introduced; it does not exist in the abstract beсause the government might introduce something. Section 1229a(b)(4)(B) therefore has no relevance in deciding whether defendant may invoke Exemption 5.
Plaintiff’s third argument fails for similar reasons. Plaintiff asserts that “[t] he DHS is
planning to use the Assessment in Immigration Court in the future; therefore it has waived
In support of this argument, plaintiff directs the Court to
DOJ v. Julian
.
whatever privilege may have attached.” Pl.’s Mot. at 10 –16; Pl.’s Reply at 6– 7. But it is
axiomatic that a party does not waive a privilege by intending to take an action in the future;
privilege is waived only when that action is actually taken. As a result, plaintiff cannot rely on
the principle that voluntary disclosures may waive privileges because defendant has not made
any voluntary disclosure or taken any action that would waive the deliberative process privilege
at this time, and all of plaintiff’s arguments relating to defendant’s alleged waiver o f the
privilege are cast in the future tense.
See
Pl.’s Mot. at 10 (“DHS states
if
the Assessment is
For this reason, plaintiff’s argument that defendant cannot unilaterally use the
Assessment and then claim the privilege must fail: Defendant has not yet attempted to use the
Assessment against plaintiff in immigration court,
see
Pl.’s Mot. at 11 (“Defend ant plans to use
the Assessment . . . .”), which makes the cases plaintiff relies on inapplicable.
See United States
v. Nobles
,
And the other cases plaintiff relies on involve situations where previously privileged
documents lose privileged status and protection under FOIA because they are incorporated into
the agency’s policy.
See Nat’l Council of La Raza v. DOJ
, 411 F.3d 350 (2d Cir. 2005)
(permitting disclosure of a formerly privileged memorandum because repeated references to it
led to tis incorporation into DOJ policy);
Brennan Ctr. for Justice at NYU Sch. of Law v. DOJ
,
No. 09-8756,
P laintiff’s fourth argument is that defendant should be judicially estopped from asserting the deliberative process privilege in this case because the government has consistently taken the position before immigration courts that the Assessment can be a useful and valuable tool in determining the credibility of the asylum applicant. Pl.’s Mot. at 17–18; Pl.’s Reply at 7– 9. This argument fails for the same reason the waiver claims are unavailing.
Judicial estoppel is an equitable rule that provides that “ [w]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the par ty who has acquiesced in the position formerly taken by him.” New Hampshire v. Maine , 532 U.S. 742, 749 (2001), quoting Davis v. Wakelee , 156 U.S. 680, 689 (1895). It is meant “ to protect the integrity of the judicial process, by prohibiting parties from deliberately changing positions according to the exigencies of the moment.” at 749 – 50 (citations and internal quotation marks omitted). Those concerns are not present here: the fact that DHS may choose to waive a privilege or even regularly chooses to waive that privilege – is not inconsistent with maintaining the position that the material is privileged in the first place. A party should not be estopped from asserting a privilege initially just because it may later waive that privilege if it finds it in its interest to do so. Here, defendant has not yet waived the privilege that covers the Assessment, and what it may or may not do in the future does not operate as estoppel.
Plaintiff’s fifth argument echoes his judicial estoppel points: that a n agency which is inconsistent is not entitled to deference by the courts. Pl.’s Mot. at 21– ; Pl.’s Reply at 10– 11. *21 As examples of defendant’s inconsistent positions, plaintiff states that (1) “DHS frequently provided assessments to asylum applicants in the past, ” (2) “DHS delivered the notes of the asylum officer to Mr. Abtew,” changing its position that the notes were exempt, and (3) DHS’s training manuals, that are included on its website, informs AO s that an asylum applicant “may submit a Freedom of Information Act [(FOIA)] request to obtain a copy of an assessment (and other information in the file).” Pl.’s Mot. at 21– 23 (citations omitted); see also Pl.’s Opp. at 13; Pl.’s Repl y at 10 11. But plaintiff offers no evidence to support his first contention, and as the Court has already noted, the fact that the Assessment may be revealed in litigation later does not bear upon the validity of the exemptiоn.
Similarly, the training manuals that plaintiff cites do not support a conclusion that defendant is being inconsistent in its position regarding the availability of the Assessment under FOIA. The training manuals alert AO s to the fact that an asylum applicant “may submit ” a FOIA request to obtain the Assessment. They do not indicate that the request will be honored without contest. Finally, it is not unusual for a party to modify its position in litigation. And if plaintiff has concerns about defendant’s good faith, th e Court has conducted its own in camera review of the Assessment , and it finds no reason to disturb the agency’s characterization of the document as deliberative.
Plaintiff argues that notes of an AO and the Assessment are similar, and therefore if the notes are not exempt, there is no reason to find the Assessment exempt. Pl.’s Opp. at 10– 11, 13 – 14. But that logic does not add up. The notes a person takes during an interview do not necessarily include the interviewer’s analysis or subjective opinion about the veracity or consistency of what the interviewee is saying. The Assessment, on the other hand, includes that type of subjective analysis, which is why the Court found it protected by the deliberative process privilege. And to the extent that the Assessment includes facts that are also included in the notes that have been disclosed, the Assessment can still be protected so long as the Court finds that the facts in the Assessment are so interwoven with the subjective analysis of the AO that they are necessarily deliberative in and of themselves. As described more fully below, the Court makes that finding in this case.
Plaintiff’s final two arguments are essentially policy arguments as to why the Court should not allow defendant to invoke Exemption 5 in this case: that invocation of Exemption 5 threatens plaintiff’s rights under 8 U.S.C. § 1229a(b), Pl.’s Mot. at 23– 26 ; Pl.’s Reply at 11 , and that t he “integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts.” Pl.’s Mot. at 27– 30.
Once again, any argument that plaintiff’s rights under section 1229a(b) are threatened by
the invocation of Exemption 5 is premature. Section 1229a(b)(4)(B) provides an alien with
“reasоnable opportunity to examine the evidence against him,” 8 U.S.C. § 1229a(b)(4)(B); it
does not provide him with the right to obtain evidence that
might
be used against him in
advance. Similarly, plaintiff’s additional section 1229a( b) arguments about fundamental
Singh v. Holder
, 405 F. App’x 193 (9th Cir. 2010),
Hernandez-Guadarrama v. Ashcroft
,
fairness do not negate the applicability of the FOIA exemption to a document that may not ever be introduced at the immigration proceеding. [16]
The Court recognizes the importance of the civil and criminal discovery mechanisms that
plaintiff itemizes in his pleadings,
see
Pl.’s Mot. at 27– ; Pl.’s Reply at 12 , but he will be
afforded due process and discovery rights at the immigration hearing, including, if appropriate, a
right to the Assessment under section 1229a(b)(4)(B). The analogy to civil discovery rules is
inapposite since a work product privilege is recognized in that context as well, and the
protections plaintiff lists that are offered to a criminal defendant arise in the context of an
indictment and subsequent trial not in advance of the initiation of court proceedings.
[17]
Plaintiff cites
Dent v. Holder
,
17 Moreover, plaintiff is incorrect about the scope of discovery in the criminal context: for example, grand jury witnesses do not automatically get transcripts of their testimony.
As a result, the Court is unpersuaded by plaintiff’s arguments that defendant cannot invoke Exemption 5 as a justification for withholding the deliberative portions of the Assessment. [18] There are reasonably segregable portions of the Assessment that defendant must
II. disclose.
Plaintiff argues in the alternative that, even if the document is prоperly withheld, the segregable facts contained in it are not deliberative and must be disclosed to him. Pl .’s Reply at 14. Defendant states that the facts included in the Assessment are so interwoven with the deliberative portions of that document that they cannot be reasonably segregated and are therefore properly withheld. Def.’s Mot. at 4– 5; Eggleston Decl. ¶ 17. The Court ordered production of the Assessment for in camera review in order to resolve this dispute. Apr. 29, 2014 Minute Entry.
Under FOIA, “[a]ny reasonably segregable portion of a re cord shall be provided to any
person requesting such record after deletion of the portions which are exempt.” 5 U.S.C.
§ 552(b). T his Circuit has held that any “non -exempt portions of a document must be disclosed
unless they are inextricably intertwined with exempt portions.”
Mead Data Cent., Inc. v. U.S.
Dep’t of Air Force
,
After reviewing the Assessment in camera , the Court concludes that the first six paragraphs simply recite and summarize the facts that plaintiff presented to the AO during his 18 The Court notes, though, that this case presents a unique situation where the document at issue may have significаnt repercussions for plaintiff if it is used at his immigration proceeding. Based on the potential significant impact that the document may h ave on plaintiff’s immigration status, as well as the strong likelihood that the Assessment will be introduced at plaintiff’s immigration proceeding and that such use would in fact waive the deliberative process privilege while simultaneously triggering the protection afforded to plaintiff by section 1229a(b)(4)(B), the Court encourages defendant to not delay in providing the Assessment to plaintiff if it ultimately decides it will be used in the immigration proceeding.
asylum application interview. Those paragraphs do not include any analysis or impressions, and they do not reflect the AO’s deliberative process : although the document does not purport to be a verbatim rendition of the interview, and there may have been some streamlining involved, the summary does not involve the sort of culling of facts from a large universe that could be characterized as deliberative. See Ancient Coin Collection Guild v. U.S. Dep ’t of State , 641 F.3d 504, 513 (D.C. Cir. 2011) (noting that factual summaries may reflect the predecisional, deliberative process where they indicate “an exercise of judgment as to what issues are most relevant to the pre-decisional findings and recommend ations”). The paragraphs are therefore not protected by Exemption 5, and they are easily segregated from the privileged portions of the Assessment that follow. So, the first six paragraphs of the document must be disclosed to plaintiff.
The remaining portions of the Assessment, however, are properly withheld under Exemption 5. Any facts contained in those paragraphs are interwoven with the AO’s reasoning and recommended disposition, and they cannot be reasonably segregated from the privileged material. Thus, defendant may continue to withhold the remaining portions of the Assessment under Exemption 5.
III. Plaintiff’s claim that defendant’s failure to disclose the Assessment violates 8 U.S.C. § 1229a(b) is not ripe.
Count III of the complaint requests that this Court find that defendant violated plaintiff’s rights under 8 U.S.C. § 1229а(b)(4)(B) by failing to provide him with a copy of the Assessment. The parties disagree as to whether that section creates a private cause of action, Def.’s Mot. at 7; Pl.’s Opp. at 16, and defendant also asserts that this count should be dismissed as premature. Def.’ s Mot. at 1. Because this claim is not ripe, it will be dismissed, and the Court need not reach the issue of whether plaintiff has a private cause of action under section 1229a.
Ripeness is a two-pronged inquiry: first, courts consider “the ‘fitness of the issues for
judicial decision,’” and second, they consider “the extent to which withholding a decision will
c ause ‘hardship to the parties.’”
Am. Petroleum Inst. v. EPA
, 683 F.3d 382, 387 (D.C. Cir.
2012), quoting
Abbott Labs. v. Gardner
,
CONCLUSION
Because the Assessment is covered by the deliberative process privilege and because that privilege has not been waived as of the date of this opinion, the Court finds that defendant properly withheld the document under FOIA Exemption 5. But it also finds that the first six paragraphs of the document are not deliberative and that they are reasonably segregable from any protected information, so defendant must therefore release those paragraphs to plaintiff. The Court will therefore grant defendant’s motion for summary judgment in part and deny it in part, while also granting plaintiff’s motion for summary judgment in part and denying it in part with respect to Count II.
Additionally, the Court finds that Count III of the complaint is premature because the rights plaintiff seeks to protect have not yet been triggered. As a result, the Court will dismiss Count III on ripeness grounds. A separate order will issue.
AMY BERMAN JACKSON United States District Judge DATE: June 13, 2014