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Abramyan v. United States&Nbsp; Department of Homeland Security

United States District Court, District Circuit

December 4, 2013




This matter is before the Court on a motion for summary judgment by Defendants United States Department of Homeland Security ("DHS"), Attorney General Eric Holder, United States Citizenship and Immigration Services ("USCIS"), and the USCIS National Records Center ("NRC"). Plaintiff Nina Abramyan claims that Defendants (hereinafter "USCIS") violated the Freedom of Information Act (FOIA) in processing a request for information made on her behalf by her attorney. See Complaint, Dkt. #1, ¶¶ 2, 5. USCIS argues that it satisfied the statutory requirements by conducting a reasonable search, producing all responsive documents covered by the statute, and properly withholding certain documents under statutory exemptions. Defendants' Motion for Summary Judgment (hereinafter "Defs' Mot."), Dkt. #7, at 1. Having reviewed the parties' briefs together with all relevant materials, the Court grants Defendants' Motion for Summary Judgment, for the reasons stated below.


On December 8, 2011, Abramyan's attorney, Anna Darbinian, filed a FOIA request with the USCIS. The request included a completed copy of form G-28 ("Notice of Entry of Appearance as Attorney or Accredited Representative"), and a completed copy of form G-639 ("Freedom of Information/Privacy Act Request"), along with a letter from Darbinian. See Compl., Ex. A-1. Darbinian requested a "complete copy of the Alien File (A-File) (including: all decision information, all applications, all petitions, all notices, all exhibits, all submissions, all receipts, and any and all documents that consist of the complete and full Alien file from USCIS)." Id. The letter gave Abramyan's full name, an alternate name ("Nina Hovsepyan"), her date of birth, and her place of birth (Azerbaijan), and stated that her Alien Number, or "A-Number, " was unknown. Id. The G-639 form contained the same information, and also included a pending visa petition number, listed in a box titled "Petition or Claim Receipt Number." Id.

On December 19, 2011, USCIS acknowledged receipt of Darbinian's FOIA request, stating that it had "completed a search of our Central Index System (CIS) and Computer Linked Applications Information Management Systems (CLAIMS), " but that "no records responsive to your request were located." Compl., Ex. A-2. USCIS's response letter referenced the visa petition number Abramyan had submitted on her G-639 form. Id.

Darbinian appealed the determination to the USCIS Appeals Office on January 23, 2012. She alleged in the appeal letter that her client was seeking a visa from the United States Consulate in Moscow, and that the consulate had informed her of a previous application for asylum, made in 1999. Compl., Ex. B-1. Darbinian explained that according to the consulate, Abramyan's 1999 asylum application contained misrepresentations and/or fraud. Id. Darbinian argued in the administrative FOIA appeal that if the Moscow consulate had a record of Abramyan's prior application, USCIS must also have a record of Abramyan's asylum application, and therefor Abramyan should have an A-file. Id. Darbinian added that Abramyan was the beneficiary of a pending visa petition filed by Abramyan's mother, again referencing the petition number, and also mentioned that Abramyan was the subject of a refugee status application filed at the State Department's Washington processing center "as early as June 1993." Id. Darbinian requested an expedited reply, within 20 days, based on her need to timely file a waiver on her client's behalf, in response to the consulate's allegations of misrepresentation and/or fraud. Id.

On February 2, 2012, USCIS informed Darbinian via letter that it had decided to remand her request for further search. Compl., Ex. B-2. On February 13, 2012, USCIS wrote Darbinian acknowledging that her request had been received and was being processed on the "complex track, " or "Track 2, " of USCIS's first-in, first-out multi-track system. Compl., Ex. C.

In a letter dated April 23, 2012, USCIS wrote to Darbinian that it had completed review of its records, and had identified 184 pages of responsive documents. Defs' Mot., Ex. F. USCIS determined that it would disclose 165 pages in full and two pages in part. Id. The letter explained that USCIS was withholding six pages because they contained no reasonably segregable portions of non-exempt information, citing 5 U.S.C. § 552(b)(5), (b)(6), and (b)(7)(e) as the applicable FOIA exemptions. Id. [1] The letter itself did not describe the withheld documents or connect any particular document with the asserted exemptions.

Abramyan filed this action on June 26, 2012.[2] She seeks a declaratory judgment that USCIS is in violation of FOIA, and a court order requiring USCIS to release to her all the requested files. Compl. at 8. As she represented to USCIS, Abramyan alleges that the United States consulate in Moscow deemed her ineligible for a visa due to material misrepresentations in an application for asylum filed by her in 1999. Compl. ¶¶ 3, 14. Abramyan argues that she needs the files associated with the 1999 asylum application in order to respond to the misrepresentation charges. Id. ¶ 19.

In support of its Motion for Summary Judgment, USCIS submitted the Declaration of Brian Welsh ("Welsh Dec."), the Deputy Branch Chief of the NRC FOIA Unit. With respect to the adequacy of USCIS's search for responsive records, Welsh stated that Darbinian's January 3, 2012 appeal letter included "additional information" - namely Abramyan's previous asylum application and visa petition number - that allowed USCIS to retrieve Abramyan's A-File. Welsh Dec. ¶ 8. Welsh explained that USCIS used Abramyan's visa petition number to search USCIS's Person Centric Query System (PCQS), which "enables USCIS staff to query an individual's identifying information, in this instance a visa petition number, and locate government records pertaining to that individual." Id. ¶ 12. Having retrieved Abramyan's A-number, USCIS tracked down her A-file. Id.

Welsh described the documents USCIS withheld. According to Welsh, USCIS relied on FOIA exemption (b)(6) in redacting certain personal details of the individual who filed a petition on Abramyan's behalf, and in redacting certain personal details of the interpreter used in the asylum interview. Id. ¶¶ 17-18; see 5 U.S.C. § 552(b)(6).

Welsh also explained that USCIS withheld in full a two-page document entitled "Assessment to Refer, " and four pages of handwritten notes, under exemption (b)(5). Id. ¶ 19; see 5 U.S.C. § 552(b)(5). Welch described the "Assessment to Refer" as "an internal agency record prepared by the asylum officer after his/her interview with the Plaintiff...[which] contains a brief factual distillation of the Plaintiff's asylum interview and includes the INS asylum officer's impressions of that interview, including an assessment of the Plaintiff's credibility, reasons for that assessment, and the recommendation of the asylum officer to deny the plaintiff's application for asylum and refer her to an immigration judge for further proceedings." Id. According to Welsh, the "Assessment to Refer" "reflects a summary of the pertinent facts and the officer's impressions and conclusions and is an integral part of the deliberative process the agency undertakes when determining how to adjudicate an asylum application." Id. ¶ 20. Welsh characterized the assessment as the asylum officer's "initial recommendation on the asylee's application, " reviewed by a supervisory officer. Id.

As for the handwritten notes, Welsh explained that the first page "contains handwritten notes of an INS officer concerning his/her review of records relevant to the Plaintiff's asylum application, " including "discussion of birth certificates" of Abramyan and another individual. Id. ¶ 21. Welsh said that "[t]he notes reveal the INS officer's impressions about the birth certificates relevant to Plaintiff's asylum claim and indicated the officer needed additional information concerning the birth certificates." Id. The next three pages were described as "handwritten notes" that "record various portions of the Plaintiff's asylum interview and include some discussion about the Azerbaijan birth certificates the Plaintiff provided for herself and her daughters. Id. Welsh asserted that "[t]he notes reflect commentary on the veracity of documents submitted by the Plaintiff in support of her asylum application, " as well as "preliminary conclusions drawn by the asylum officer during the Plaintiff's asylum interview." Id.

Welsh maintained that "none of the information in the records at issue can be reasonably segregated" because "[t]he factual portions of the Assessment to Refer and in the handwritten notes cannot be severed from their context." Id. He stated that "[t]he factual distillation in the Assessment to Refer record and in the handwritten notes does not purport to be a verbatim transcript of the ...

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