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Airaj v. United States Department of State

United States District Court, District of Columbia

April 27, 2016



ELLEN SEGAL HUVELLE United States District Judge

Plaintiff, an Afghan national, has sued the United States Department of State, seeking documents under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, relating to the State Department’s decision not to grant COM (“Chief of Mission”) approval for plaintiff to apply for a Special Immigrant Visa. Before the Court is defendant’s Motion for Summary Judgment (Jan. 8, 2016 [ECF No. 17] (“Def’s Mot.”)) and plaintiff’s Motion for Partial Summary Judgment (Jan. 22, 2016 [ECF No. 21] (Pl’s Mot.”)).

As explained herein, the Court grants defendant’s motion for summary judgment and denies plaintiff’s motion for partial summary judgment.



In 2009, Congress passed the Afghan Allies Protection Act (AAPA). Pub. L. 111-8, Div. F, Title VI, Mar. 11, 2009, 123 Stat. 807. The statute was designed, in part, to provide an immigration route to the United States for Afghans who had risked their own safety in order to cooperate with American military forces in their fight against the Taliban. The AAPA created the Special Immigrant Visa (SIV) program, which specified four criteria for eligibility to apply for an SIV: (1) status as a citizen or national of Afghanistan; (2) past or present employment by or on behalf of the U.S. government beginning on or after October 7, 2001; (3) faithful and valuable service to the U.S. government, documented in a positive recommendation or evaluation from a supervisor; and (4) an ongoing serious threat as a consequence of employment by the U.S. government. See Id. § 602(a)(2)(D). In order to fulfill the third criterion, the AAPA requires that the recommendation or evaluation from a supervisor be “accompanied by approval from the appropriate Chief of Mission…who shall conduct a risk assessment of the alien and an independent review of records maintained by the United States Government or hiring organization or entity to confirm employment and faithful and valuable service to the United States Government prior to approval of a petition under this section.” Id. This requirement in the SIV application process is commonly referred to as Chief of Mission or “COM” approval.

A State Department website entitled “Special Immigrant Visas for Afghans” lays out a series of steps for Afghans interested in the SIV process. It first directs petitioners to “STEP 1- Apply for Chief of Mission Approval, ” a link which opens a document providing Applicant Guidelines for COM Approval.[1] Petitioners submit their information and required documentation by email to the State Department, which forwards completed COM applications to the U.S. Embassy in Kabul for a decision by the appropriate COM designee. Applicants who receive COM approval then proceed to the application’s second step, which involves filing a Form I-360 Petition with United States Citizenship and Immigration Services (USCIS). If the USCIS Petition is approved, the applicant moves on to the third step and prepares a final visa application. The fourth and final step involves a visa interview.


Between June 2008 and January 2012, plaintiff worked as a linguist with Mission Essential Personnel (MEP) in support of the United States Armed Forces at Camp Phoenix in Afghanistan. (Declaration of Carl G. Roberts (“Roberts Decl.”), Ex. 1, Jan. 22, 2016 [ECF No. 21-4].) In 2012, plaintiff was terminated for refusing to participate in a mission within the Khost Province of Afghanistan. According to plaintiff, members of the Taliban had threatened his life on multiple occasions, and the Khost mission posed what he deemed to be an unacceptably high risk to his safety. (Id.) Multiple members of the U.S. military who have written laudatory letters of recommendation in support of plaintiff’s immigration applications confirm that plaintiff faced ongoing, legitimate threats from the local population for his cooperation with the U.S. armed forces. (Id.) Plaintiff claims that MEP would not allow him to take a different, less dangerous assignment, so he was “suspended from [his] work with” the U.S. government. (Id.)

Plaintiff applied for COM approval to submit a petition for the SIV program three separate times, including twice in 2011 and a third time in 2013, and was denied each time. (See id. ¶ 4.)[2] The response letters from the State Department’s Kabul Embassy are each entitled “Chief of Mission Denial for Afghanistan Special Immigrant Visa Status” and all cite the same reason for denying plaintiff COM approval: “Derogatory information has been associated with you which is incompatible with the regulations of the Special Immigrant Visa Program.” (Id. at Exs. 2-4.)


In a letter dated January 16, 2014, plaintiff submitted a FOIA request to the Office of Information Programs and Services (IPS) for:

all documents and information from December 1, 2010 through January 16, 2014 pertaining to the special immigrant visa or "SIV" application of Hameedullah Airaj, birthdate January 1, 1988, for USRAP- resettlement as contained in the records of the Refugee Processing Center, including any and all information from his full Worldwide Refugee Admissions Processing System file.

(Declaration of John F. Hackett (“Hackett Decl.”), Ex. 1, Jan. 8, 2016 [ECF No. 17-3].) Plaintiff also requested a fee waiver. In a letter dated February 20, 2014, IPS acknowledged receipt of plaintiff's request, assigned it a case control number, and denied plaintiff’s request for a fee waiver. It also advised that “unusual circumstances (including the number and location of Department components involved in responding to your request, the volume of requested records, etc.) may arise that would require additional time to process your request, ” but it would notify plaintiff as soon as responsive material was retrieved and reviewed. (Id. at Ex. 2.) Plaintiff appealed the denial of a fee waiver by letter dated March 21, 2014, and on March 31, IPS advised plaintiff that it had upheld its denial of a fee waiver. On April 27, 2014, plaintiff requested expedited processing of his FOIA request, and on May 2, 2014, IPS informed plaintiff that it had granted his request for expedited processing.

IPS initially determined that the offices most likely to have documents responsive to plaintiff’s request were the Bureau of Population, Refugees and Migration (PRM) and the Office of Visa Services within the Bureau of Consular Affairs. Defendant’s search of databases used by PRM yielded no responsive documents, but it recovered fifty-four documents from its search of multiple databases used by the Office of Visa Services.

On November 24, 2014, IPS notified plaintiff that it had located fifty-four responsive documents. The letter stated that, although the documents pertained to the application for a visa or permit to enter the United States and thus could be withheld pursuant to 5 U.S.C. § 552(b)(3) (“ FOIA Exemption 3”) and Section 222(f) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1202(f), defendant had decided to produce the documents because they had originated with or previously been seen by plaintiff. Due to a clerical error, defendant failed to include all fifty-four documents in its initial production, although it would later cure the mistake by producing the remaining documents retrieved from the Office of Visa Affairs.[3]

On January 9, 2015, plaintiff appealed defendant’s response to his FOIA request. Plaintiff’s letter acknowledged that it was unclear whether defendant was relying on Exemption 3 to withhold records, but nonetheless challenged its application to the responsive documents. (Roberts Decl., Ex. 6, at 3 (arguing that “the Department has erred in its application” of Exemption 3).) Plaintiff also added specificity to his initial FOIA request:

Mr. Airaj requests that the Appeals Review Panel direct the Department to immediately release to us all documents pertaining to Mr. Airaj’s petition for COM approval to file an SIV application, including specifically any documents containing or describing the reasons for denial of COM approval and any other documents relating to that decision or the process through which it was made.

(Roberts Decl., Ex. 6, at 1-2.) Defendant acknowledged receipt of plaintiff’s appeal on January 13, 2015, but apparently did not reach a decision before plaintiff filed his complaint with this Court on June 23, 2015. On July 17, 2015, defendant advised plaintiff that his administrative appeal ...

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