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Abtew v. United States Dep't of Homeland Security

United States District Court, D. Columbia.

June 13, 2014


Page 99

For ANTENEH ABTEW, Plaintiff: David Laundon Cleveland, LEAD ATTORNEY, CATHOLIC CHARITIES, Washington, DC.


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AMY BERMAN JACKSON, United States District Judge.

In this case, 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). Id. ¶ ¶ 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 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.



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 of 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

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respond to the NOID by submitting additional information and supporting documents. Id. ¶ ¶ 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 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 the Court of Appeals. Id. ¶ 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.


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,[1] and on October 9, 2012, an AO in the Arlington Asylum Office interviewed him about his application. Pl.'s SOF ¶ 1. During the interview, the AO and plaintiff communicated

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through an interpreter, and the AO took notes. Id.

After the interview, the AO prepared a four-page Assessment. Id. ¶ ¶ 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." Referral Notice, Ex. E to Decl. of Jill Eggleston, Ex. A to Def.'s Mot. (" Referral Notice" ) [Dkt. # 23-1]; see also Pl.'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 then 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 plaintiff's rights under 8 U.S.C. § 1229a(b). Id. ¶ ¶ 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. # ...

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