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American Immigration Lawyers Association v. United States Department of

March 30, 2012

AMERICAN IMMIGRATION LAWYERS ASSOCIATION PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

Plaintiff American Immigration Lawyers Association ("AILA" or "plaintiff") brings this action against the United States Department of Homeland Security ("DHS") and the United States Citizenship and Immigration Services, a DHS subdivision ("USCIS" collectively, "defendants") under the Freedom of Information Act ("FOIA"), seeking the release of information withheld by the USCIS.

Pending before the Court are the parties' cross-motions for summary judgment. Plaintiff principally argues that the USCIS waived its right to withhold or redact certain information because that information is in the public domain, and that even if waiver did not occur, certain material was improperly withheld because FOIA exemption 7(E) does not apply to those documents. See 5 U.S.C. § 552(b)(7)(E). In a cross-motion for summary judgment, the USCIS disputes plaintiff's allegations of waiver, and argues that all withheld material was properly exempt from disclosure pursuant to several FOIA exemptions, including 7(E).

Upon careful consideration of the motions, the responses and replies thereto, the applicable law, and the entire record, the Court hereby GRANTS in part the plaintiff's motion for summary judgment and DENIES defendants' cross-motion for summary judgment without prejudice.

I.BACKGROUND

Plaintiff AILA is an association of over 11,000 attorneys and law professors who practice and teach immigration law. Plaintiff's Memorandum in Support of its Motion for Summary Judgment ("Pl.'s Br."), Docket No. 23-2, at 7. Defendant USCIS is the agency that oversees lawful immigration to the United States, and is charged with disseminating information regarding immigration issues, granting immigration and citizenship benefits, promoting awareness and understanding of citizenship, and ensuring the integrity of the United States immigration system. Defendants' Memorandum of Points and Authorities in Support of Cross-Motion for Summary Judgment ("Defs.' Br."), Docket No. 25-2, at 2. Among its responsibilities, the USCIS processes H-1B temporary visa petitions filed by United States employers seeking to hire non-immigrant alien workers on a temporary basis. Defs.' Br. at 2. The USCIS carries out this function pursuant to the Immigration and Nationality Act ("INA"), 8 U.S.C. § 101(a)(15)(H)(i)(b), which provides for the admission into the United States of temporary workers to perform services in a specialty occupation. Pl.'s Br. at 2; Defs.' Br. at 2.

A.Plaintiff's FOIA Requests

Beginning in 2009, AILA submitted three FOIA requests to the USCIS. The requests were processed by the USCIS's National Records Center ("NRC"), in compliance with DHS implementing regulations found at 6 C.F.R. Part 5 and Management Directive No. 0460.1. Defs.' Statement of Material Facts ("Defs.' SMF"), Docket No. 25-3, ¶ 1.

By letter dated February 6, 2009, Robert Deasy, AILA's Director of Liaison and Information, submitted a FOIA request ("February 6 Request") to the USCIS on behalf of AILA for:

Copies of any and all guidance, including, but not limited to memoranda, standard operating procedures, and templates used for Requests for Evidence regarding adjudicating H-1B petitions issued as a result of, in connection with, in light of, or related to the Benefits Fraud [Compliance] Assessment Report. Defs.' SMF ¶ 7. This request was assigned control number NRC2009007831. Defs.' SMF ¶ 8.

By letter dated March 18, 2009, AILA submitted a second FOIA request ("March 18 Supplemental Request"), in which it requested a document entitled "H1-B Processing Fraud Referral Sheet" ("H1-B Petition Fraud Referral Sheet") and petitioned for expedited processing. Defs.' SMF ¶ 9. This request was considered a supplement to the February 6 Request and was included within it for purposes of processing. See id. ¶¶ 9,

13. The request for expedited processing was denied. Defs.' SMF ¶ 13.

On April 13, 2009, AILA submitted a third FOIA Request ("April 13 Request") to the USCIS, this time seeking "The Compliance Review Worksheet Mentioned in Comment Request for Compliance Review Worksheet, 74 FR 15999 (April 8, 2009)" ("Compliance Review Report"). Defs.' SMF ¶ 14. The NRC received the April 13 Request on April 27, 2009. Defs.' SMF ¶ 15. The request was assigned control number NRC2009023483. Defs.' SMF ¶ 16. On May 8, 2009, AILA submitted a request to expedite the April 13 Request, which was denied by letter on May 28, 2009. Defs.' SMF ¶¶ 17, 18.

Several documents that resulted from USCIS's searches*fn1 are at issue in this case.

1. Compliance Review Report

One two-page, preprinted USCIS form entitled "Compliance Review Report" was deemed responsive to AILA's April 13 Request. Defs.' SMF ¶ 52; Substitute Declaration of Jill A. Eggleston ("Sub. Eggleston Decl."), Docket No. 25-5, ¶ 42.*fn2 On June 9, 2009, the USCIS determined that the document should be withheld in full pursuant to FOIA exemptions (b)(2)*fn3 and (b)(7)(E).

Defs.' SMF ¶ 53. On August 7, 2009, AILA administratively appealed the decision, which was affirmed on February 18, 2010. Sub. Eggleston Decl. ¶¶ 38,40. At some time after this litigation was commenced on July 20, 2010, USCIS made the determination that some of the information withheld could be disclosed, and the USCIS released the document in redacted form on October 27, 2010. Defs.' SMF ¶¶ 57, 59; Watkins Decl., Ex. 12. USCIS also released a revised index on that date, pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), explaining USCIS's basis for withholding portions of the document. See October 27, 2010 Vaughn Index ("Oct. 27, 2010 Vaughn Index"),

Ex. 21 to the Declaration of Seth A. Watkins in Support of Plaintiff's Motion for Summary Judgment, ("Watkins Decl."), at 4.

2. Neufeld Memorandum

A four-page memorandum by Donald Neufeld, Acting Associate Director of Domestic Operations, regarding H-1B fraud initiatives ("Neufeld Memorandum") was determined to be responsive to the February 6 Request and the March 18 Supplemental Request. Sub. Eggleston Decl. ¶ 41. The NRC initially determined that this document should be withheld in its entirety pursuant to FOIA exemptions (b)(2), (b)(5), and

(b)(7)(E). Defs.' SMF ¶ 51. On March 11, 2010, AILA administratively appealed this decision. Defs.' SMF ¶ 45. The appeal was still pending when this action was filed.

At some time after this litigation was commenced on July 20, 2010, USCIS made the determination that some of the information withheld could be disclosed. Defs.' SMF ¶ 54.

Much, but not all, of the information contained in the Neufeld Memorandum had been publicly disclosed with the publication of the H-1B Benefit Fraud and Compliance Assessment ("BFCA Report"), which is posted on the internet. Defs.' SMF ¶¶ 54-55; Watkins Decl., Ex. 2. Moreover, the Neufeld Memorandum was issued in September 2008 as a final agency determination, rendering FOIA exemption (b)(5) inapplicable as authority for withholding that document from public viewing. Defs.' SMF ¶ 56. The USCIS therefore released the document in redacted form on October 27, 2010, and the USCIS's basis for withholding the document was explained in the October 27 Vaughn Index. Defs.' SMF ¶¶ 57, 59; Oct. 27, 2010 Vaughn Index, Watkins Decl., Ex. 21, at 1.

3. H-1B Petition Fraud Referral Sheet

A two-page pre-printed USCIS form entitled "H-1B Petition Fraud Referral Sheet" was also determined to be responsive to the February 6 Request and March 18 Supplemental Request. Sub. Eggleston Decl. ¶ 41. NRC made the initial determination that the document should be withheld pursuant to FOIA exemptions (b)(2), (b)(5), and (b)(7)(E) and that there were no reasonably segregable portions for release. Defs.' SMF ¶¶ 43-44. On March 11, 2010, AILA administratively appealed that decision. Defs.' SMF ¶ 45. The appeal was still pending when this action was filed.

At some time after this litigation was commenced on July 20, 2010, USCIS made the determination that some of the information withheld could be disclosed, and the USCIS released the document in redacted form on October 27, 2010. Defs.' SMF ¶¶ 57, 59. The October 27, 2010 Vaughn Index explained the basis for withholding portions of the document. Oct. 27, 2010 Vaughn Index, Watkins Decl., Ex. 21, at 2.

B.Initial Cross-Motions for Summary Judgment

After releasing the redacted versions of certain documents, defendants moved for summary judgment on December 10, 2010, asserting that they had satisfied all of their obligations with respect to AILA's FOIA requests. See Docket No. 11. Plaintiff filed its opposition to defendants' motion for summary judgment and in support of plaintiff's cross-motion for summary judgment on January 14, 2011. Docket No. 13. Plaintiff challenged, among other things, the adequacy of defendants' searches. When the USCIS reviewed plaintiff's summary judgment filing, it determined it may have missed documents potentially relevant to plaintiff's requests. Defs.' SMF ¶ 60. With plaintiff's consent, the USCIS commenced a renewed search for documents responsive to AILA's FOIA requests on March 29, 2011. Defs.' SMF ¶ 61. USCIS made a subsequent production of documents to plaintiff on May 9, 2011 and submitted a Supplemental Vaughn Index describing the materials withheld. May 9, ...


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