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Soto v. U.S Department of State

United States District Court, District of Columbia

June 17, 2016

MAURICIO ROJAS SOTO, et al., Plaintiffs
v.
U.S. DEPARTMENT OF STATE, Defendant

          MEMORANDUM OPINION

          RANDOLPH D. MOSS United States District Judge

         This is an action brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, by a family of four Colombian citizens attempting to obtain information about the records relied upon by the State Department to deny their visa applications. In August 2015, the Court issued an opinion granting the State Department’s motion for summary judgment in principal part, concluding that the Department had conducted an adequate search for responsive records and had appropriately withheld portions of those records under FOIA Exemption 3. See Soto v. U.S. Dep’t of State, 118 F.Supp. 3d 355 (D.D.C. 2015). The Court reserved judgment, however, as to one question of law: whether 8 U.S.C. § 1202(f), which permits the Department to withhold documents “pertaining to the issuance or refusal of visas, ” also extends to records pertaining to the revocation of visas.[1] See Soto, 118 F.Supp. 3d at 367-69.

         At the Court’s direction, the Department has filed a supplemental declaration purporting to provide additional details about the documents it withheld under Exemption 3. Dkt. 22. It has also filed a renewed motion for summary judgment with respect to those records. Dkt. 24. The plaintiffs have filed a motion for reconsideration of the Court’s original opinion, Dkt. 28, and a renewed motion for summary judgment with respect to the records that the Department claims it relied upon in revoking one plaintiff’s student visa, Dkt. 30. For the following reasons, the Court will grant the Department’s motion, deny the plaintiffs’ motion, and deny the plaintiffs’ motion for reconsideration.

         I. BACKGROUND

         The facts and procedural history of this action are set out in the Court’s prior opinion, see Soto, 118 F.Supp. 3d at 359-60, and the Court will recount them only briefly here.

         The plaintiffs-Mauricio Rojas Soto, Amalia Sierra Correal, Nathalia Rojas Sierra, and Isabella Rojas Sierra-are four Colombian citizens. Id. at 359. In or around 2012, Soto applied for a non-immigrant visa to enter the United States. Id. On June 8, 2012, Soto’s application was denied, apparently on the ground that the United States had reason to believe that Soto had been involved in drug trafficking. Id. At the same time, the United States denied visas to Correal and Isabella Rojas Sierra, and revoked a student visa previously issued to Nathalia Rojas Sierra, apparently on the ground that the spouse, son, or daughter of anyone involved in drug trafficking is also inadmissible. 8 U.S.C. § 1182(a)(2)(C)(ii). The plaintiffs deny that Soto, or any other member of the family, has ever been involved in trafficking in controlled substances.

         The plaintiffs filed FOIA requests with the Department, seeking the records that led the Department to conclude that they were inadmissible. Soto, 118 F.Supp. 3d at 359. After some administrative back-and-forth, the Department identified 132 records responsive to their request, of which it produced 3 in full, produced 14 in part, and withheld 115. Id. at 360. It withheld the 115 records (and portions of the 14 records) on the ground that the withheld material was exempt from disclosure under FOIA Exemption 3, which shields material that is “specifically exempted from disclosure by statute, ” provided that the statute meets certain criteria. Id.; see 5 U.S.C. § 552(b)(3). The Department argued that the withheld material was shielded by 8 U.S.C. § 1202, which provides that State Department records “pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential, ” except under circumstances not present in this case. 8 U.S.C. § 1202(f).

         The Court granted the Department’s motion for summary judgment with respect to most issues in the case. Soto, 118 F.Supp. 3d at 361-72. First, the Court held that the Department had conducted an adequate search for records responsive to the plaintiffs’ FOIA request. Id. at 364-65. Second, it held that the Department had lawfully withheld records that related to the denial of visas for Soto, Correal, and Isabella Rojas Sierra. Id. at 367. Third, it held that the Department had complied with its segregability obligations, at least with respect to all records relating to the denial of those three visas. Id. at 371. The Court reserved judgment, however, with respect to one issue in the case: whether 8 U.S.C. § 1202(f) applies to documents relating only to the revocation of visas, as opposed to the “issuance or refusal of visas.” Id. at 367-69; see 8 U.S.C. § 1202(f). As the Court explained, the Vaughn index submitted by the Department did not distinguish between the records relied upon to deny visas to Soto, Correal, and Isabella Rojas Sierra and the records relied upon to revoke Nathalia Rojas Sierra’s student visa. Soto, 118 F.Supp. 3d at 368. It thus left open the possibility that Nathalia Rojas Sierra’s student visa was revoked only on the basis of those records used to deny Soto’s visa, in which case the Court would not need to resolve whether 8 U.S.C. § 1202(f) extends to visa revocation. Id. The Court therefore denied the Department’s motion for summary judgment with respect to the records related to the visa revocation, id. at 371, and directed the Department to produce a supplemental declaration on that question.

         The Department has filed a supplemental declaration pursuant to the Court’s order. Dkt. 22. Subsequent to the filing of that declaration, the parties have filed renewed cross-motions for summary judgment. Dkts. 24, 30. The plaintiffs have also filed a motion for reconsideration of the Court’s original opinion. Dkt. 28. The motions are now fully briefed.

         II. DISCUSSION

         A. Renewed Motions for Summary Judgment

         The primary question remaining in the case is whether the Department lawfully withheld records relating to the revocation of Nathalia Rojas Sierra’s student visa under FOIA Exemption 3. Soto, 118 F.Supp. 3d at 367-69. As the Court has explained, it initially declined to resolve this question because it was not clear, on the record previously before the Court, whether the Department had withheld any “documents that solely relate[d] to the revocation of a visa, ” or whether instead it had withheld only records that related both to the denial of Soto’s visa and the revocation of Nathalia Rojas Sierra’s student visa. Id. at 369. The Department has now filed a supplemental declaration in response to the Court’s opinion. Dkt. 22 (Gorsky Decl.). Instead of providing the additional detail that the Court requested, however, see Soto, 118 F.Supp. 3d at 369, the declaration merely sets out the Department’s legal position, explaining that documents relating to visa revocation are exempt as a general matter because, when it revokes a visa, “the Department relies on all of the information available regarding the applicant’s eligibility for a visa . . . as would be used for an initial issuance.” Dkt. 22 at 2 (Gorsky Decl. ¶ 5). That may be so, but it leaves the Court in the same position it was in nine months ago-with a record that is “inadequate to support” the Department’s argument that

the decision to revoke Nathalia Rojas Sierra’s visa necessarily followed from the decision to deny Mauricio Rojas Soto’s application and that “disclosing confidential information related to the revocation of the daughter’s visa would necessarily disclose confidential information regarding the denial of the father’s visa.”

Soto, 118 F.Supp. 3d at 368 (quoting Dkt. 17 at 11). Because the Court cannot be certain whether the Department in fact withheld only documents that it relied upon in denying Soto’s visa application or whether, instead, it withheld at least some documents that were used only to revoke Nathalia Rojas Sierra’s visa (and would not “disclose confidential information regarding the denial of [Soto’s] visa, ” id.), the Court will assume the latter. That is, the Court will assume that at least some of those records withheld by the Department were relied upon only in ...


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