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Gosen v. United States Citizenship & Immigration Services

United States District Court, D. Columbia.

July 30, 2015

NELSON JOSE MEZERHANE GOSEN, Plaintiff,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant. MARIA ANDREA MEZERHANE DE SCHNAPP, Plaintiff,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant

Page 233

For NELSON JOSE MEZERHANE GOSEN, Plaintiff (1:13-cv-01091-KBJ): Sandra Andrea Grossman, GROSSMAN LAW, LLC, Rockville, MD.

For CITIZENSHIP AND IMMIGRATION SERVICES, Defendant (1:13-cv-01091-KBJ): John Cuong Truong, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

For MARIA ANDREA MEZERHANE DE SCHNAPP, Plaintiff (1:13-cv-01461-JDB): Sandra Andrea Grossman, LEAD ATTORNEY, GROSSMAN LAW, LLC, Rockville, MD.

For UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant (1:13-cv-01461-JDB): John Cuong Truong, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

Page 234

MEMORANDUM OPINION[1]

JOHN D. BATES, United States District Judge.

Nelson Jose Mezerhane Gosen and his daughter Maria Andrea Mezerhane de Schnapp seek disclosure of agency records related to their applications for asylum under the Freedom of Information Act. The Act requires federal agencies to release all records responsive to proper FOIA requests unless the record falls within one of nine exemptions outlined in 5 U.S.C. § 552(b). Mezerhane Gosen and Mezerhane de Schnapp filed separate, but similar, FOIA actions against United States Citizenship and Immigration Services challenging the government's decision to withhold a number of requested

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documents under various FOIA exemptions.

After a previous round of cross-motions for summary judgment, only a small set of documents, comprising five pages of agency records in Schnapp, see Schnapp Vaughn Index [ECF No. 16-4] Bates Nos. 1-4, 246, and twenty-two pages of records in Gosen, see Gosen Vaughn Index [ECF No. 17-7] Bates Nos. 1-9, 28-29, 153-157, 257-62, remain in dispute.[2] See Mezerhane Gosen v. U.S. Citizenship and Immigration Services, 75 F.Supp.3d 279, 2014 WL 6809183, at *9 (D.D.C. Dec. 4, 2014); Mezerhane de Schnapp v. U.S. Citizenship and Immigration Services, 67 F.Supp.3d 95, 99 (D.D.C. 2014). Now before the Court are the parties' renewed cross-motions for summary judgment. For the reasons explained below, this Court finds that the remaining pages in dispute are generally protected under FOIA Exemption 5 by the deliberative-process privilege--but that there remains reasonably segregable non-exempt material in both cases. Thus, the Court will largely deny the plaintiffs' cross-motions for summary judgment, but grant in part Gosen's motion to the extent that it requested the release of non-exempt segregable portions of the remaining documents. The Court will grant in part and deny in part the government's motions for summary judgment and order the government to release reasonably segregable material from the remaining documents in each case.[3]

BACKGROUND

After Mezerhane Gosen, co-founder of Venezuela's last independent television station, refused to shut down programming critical of the Chavez regime, the family feared political persecution. Gosen's Compl. [ECF No. 1] ¶ 6; Schnapp's Compl. [ECF No. 1] ¶ 6. As a result, the Mezerhanes applied for asylum in the United States in August 2010. They then sat in " immigration limbo" for over three years. Schnapp's Mot. for Summ. J. [ECF No. 18-1] at 7. While waiting, the Mezerhanes experienced a few curious encounters with Immigration Services, in which agency employees seemed to believe that the Mezerhanes had already been granted asylum. Id. at 12. But come March 2013, the Mezerhanes still had not heard anything from Immigration Services. Mezerhane Gosen then decided to submit a FOIA request for any and all documents related to his pending asylum claim. Gosen's Compl. ¶ 7. Soon after, Mezerhane de Schnapp submitted her own request for documents related to her asylum claim. Schnapp's Compl. ¶ 7.

Based on their strange encounters with Immigration Services, the Mezerhanes believed that the government had made the

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final decision to grant them asylum back in September 2010--but had failed to notify them as required, and deviated from proper procedure through an ad hoc reconsideration of their applications. See Gosen's Mot. for Summ. J. [ECF No. 20-1] at 8-9. Skeptical of the ongoing application process, the Mezerhanes filed FOIA actions challenging the government's decision to withhold certain documents in response to their FOIA requests. A few months later, in November 2013, Immigration Services notified the Mezerhanes that they had been granted asylum. See Ex. L to Gosen's Mot. for Summ. J. [ECF No. 20-5] at 73; Def.'s Schnapp Mot. for Summ. J. [ECF No. 16] at 2 n.1. But the Mezerhanes nonetheless continued to seek access to the withheld documents.

Last year, this Court and another court in the district granted in substantial part the government's two motions for summary judgment because the government had properly withheld most of the documents under FOIA Exemptions 6, 7(C), and 7(E). See Gosen, 2014 WL 6809183, at *1; Schnapp, 67 F.Supp.3d at 99. But in each action, the Court denied summary judgment as to a small set of documents that were withheld under the FOIA Exemption 5 deliberative-process privilege. See Gosen, 2014 WL 6809183, at *8; Schnapp, 67 F.Supp.3d at 99. The parties have now filed renewed cross-motions for summary judgment regarding whether the deliberative-process privilege protects those remaining documents from disclosure.

Although the Mezerhanes seek disclosure of different documents, this Court analyzes their FOIA actions together. Their actions are " substantially identical" and make the " exact same legal arguments." Gosen, 2014 WL 6809183, at *2. Moreover, the Mezerhanes rely on the same evidence to argue that the agency granted them asylum back in 2010. Compare Gosen, 2014 WL 6809183, at *8-9, with Schnapp, 67 F.Supp.3d at 106-07. Mezerhane de Schnapp's asylum application depended on her father's claim of political persecution, so evidence of her asylum status at a given time is used as evidence of her father's asylum status at that time, and vice versa. See Gosen, 2014 WL 6809183, at *9 (recognizing the Mezerhane de Schnapp ...


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