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Nio v. United States Department of Homeland Security

United States District Court, District of Columbia

July 16, 2018

KUSUMA NIO, et al., Plaintiffs,



         Pending before the Court is Plaintiffs' request that the Court order Defendant United States Citizenship and Immigration Service (“USCIS”) to produce a May 17, 2018 USCIS internal guidance (“May 2018 Guidance”)[1] regarding military naturalization adjudication procedures, and that the Court permit Plaintiffs to use the May 2018 Guidance as an exhibit to their motion for summary judgment. USCIS objects to that request, arguing that the May 2018 Guidance is not admissible because it is outside the scope of the administrative record, and that the May 2018 Guidance contains sensitive and privileged information that should not be disclosed to Plaintiffs or their counsel. Judge Ellen S. Huvelle referred the parties' dispute regarding the admissibility of the Guidance to the undersigned magistrate judge. See 6/20/2018 Order, ECF No. 159. Having reviewed the May 2018 Guidance in camera and after considering the parties' submissions and applicable law, the undersigned concludes, for the reasons set forth below, that Plaintiffs are entitled to receive a redacted copy of the May 2018 Guidance for use in connection with summary judgment briefing.


         The complex factual background of the underlying action is set forth in detail in the Court's September 6, 2017 Memorandum Opinion denying Plaintiffs' request for a preliminary injunction. See Nio v. U.S. Dep't of Homeland Sec., 270 F.Supp.3d 49 (D.D.C. 2017). The undersigned will, however, briefly summarize the portions of the background and procedural history that are relevant to the pending dispute regarding the admissibility of the Guidance.

         Plaintiffs are non-citizens who enlisted in the United States Army's Selected Reserve of the Ready Reserve through the United States Department of Defense's Military Accessions Vital to the National Interest (“MAVNI”) program and have pending applications for naturalization. See Id. at 49. They have sued USCIS and its Director, the Department of Homeland Security and its Acting Secretary, and the United States Department of Defense (“DOD”) and its Secretary, raising a variety of claims under the Administrative Procedure Act (“APA”). See 2d Am. Compl., ECF No. 61. Plaintiffs allege, inter alia, that: (1) USCIS has acted arbitrarily and capriciously by requiring MAVNI applicants to undergo enhanced security screening prior to the adjudication of their naturalization applications; and (2) USCIS has unreasonably delayed its investigation, examination, and adjudication of MAVNI naturalization applications, in violation of Section 706(1) of the APA. See Nio, 270 F.Supp.3d at 66; 2d Am. Compl. ¶¶ 152-73.

         In response to a Court Order, USCIS filed a copy of a July 7, 2017 internal USCIS email, titled “Updated MAVNI N-400 Guidance, ” (“July 2017 Guidance”), that advised USCIS Field Offices that “pending and future MAVNI cases may not proceed to interview, approval, or oath until confirmation that all enhanced DoD security checks are completed.” Decl. and Doc. Produc. of Daniel Renaud (“July 2017 Renaud Decl.”) at 25, ECF No. 23-1; see also 7/14/2017 Order, ECF No. 22 (ordering production of documents referenced in prior declaration). USCIS submitted the July 2017 Guidance as part of “a compilation of all final agency guidance provided to the USCIS Field Offices and/or to the National Benefits Center by [Field Operations Directorate] headquarters from February 28, 2017, through the present, setting national policies regarding the processing of N-400 applications filed by MAVNI recruits.” July 2017 Renaud Decl. at 3-4. The July 2017 Guidance was filed on the public docket, and the body of that Guidance contains no redactions.[2]

         The Court has referred several issues to the undersigned for resolution, including a referral to “work with the parties to minimize the delay between when DOD completes an MSSD [military security suitability determination] and uploads it to the portal to share with USCIS, and when USCIS begins to undertake the remaining steps of the naturalization process.” 4/12/2018 Order, ECF No. 135. As part of that referral, the undersigned ordered Defendants and their counsel to “confer with USCIS about drafting an email or other communication from the field directorate to the field offices that reinforces the July 7th Policy and reiterates that the processing of naturalization applications, including scheduling naturalization interview for MAVNIs, should not be delayed.” 5/22/2018 Minute Order. At a subsequent hearing on May 31, 2018, Defendants asserted that such an email communication would be redundant and unnecessary, because USCIS had recently circulated further guidance (the May 2018 Guidance) to USCIS Field Offices. See 7/13/2018 Resp. to Order of the Ct., ECF No. 166-1. Defendants described the May 2018 Guidance as a document that “addresses the processing of naturalization applications, ” and explained that “[f]or all military naturalization cases, the guidance states that the offices will schedule naturalization interviews to occur within thirty days of the date on which all USCIS background checks are complete.” Id. At that hearing, Plaintiffs sought the production of the May 2018 Guidance, and USCIS indicated that it would not provide the document to Plaintiffs absent a Court Order.

         As a result of the issues raised at the May 31, 2018 hearing before the undersigned, by Order dated June 20, 2018, Judge Huvelle referred to the undersigned the parties' dispute regarding “the May 17, 2018 USCIS Guidance's admissibility as an appendix to plaintiffs' motion for summary judgment.” 6/20/2018 Order, ECF No. 159. The undersigned requested briefing on the issue. See 6/21/2018 Minute Order. Defendants contend that: (1) Plaintiffs are not entitled to receive the May 2018 Guidance because it postdates and was not part of the decision-making process regarding the formulation of the July 2017 Guidance; (2) there is no basis to allow discovery or otherwise require USCIS to disclose non-record materials; and (3) the May 2018 Guidance contains privileged material that should not be disclosed to Plaintiffs. See Defs.' Mem. Regarding the Admissibility of the May 17, 2018 Internal Guidance Doc., ECF No. 162; Decl. of Daniel M. Renaud in Support of USCIS's Privilege Assertions Re Internal May 17, 2018 USCIS Guidance (“July 2018 Renaud Decl.”), ECF No. 166-2. Plaintiffs assert that the May 2018 Guidance is relevant to several of their claims, including Plaintiffs' assertion that USCIS took arbitrary and capricious agency action, Plaintiffs' APA unreasonable delay claims, and Plaintiffs' constitutional claims. See Pls.' Resp. Regarding the Admissibility of the USCIS May 17, 2018 Internal Guidance Doc. (“Pls.' Resp.”) at 6-10, ECF No. 165. Plaintiffs also challenge the adequacy of Defendants' privilege assertions and contend that any applicable privilege was likely waived. See Id. at 10-12.


         Plaintiffs' challenge to USCIS's failure to complete the adjudication of their naturalization applications pursuant to APA Section 706(1), on the grounds that it constitutes unreasonably delayed agency action, entitles Plaintiffs to rely upon material that is outside the scope of the administrative record. Determining whether USCIS has unreasonably delayed the investigation, examination, and adjudication of Plaintiffs' naturalization applications will require the Court to conduct “a fact intensive inquiry, ” applying the factors set forth in Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 79-80 (D.C. Cir. 1984). See Nio, 270 F.Supp.3d at 66; see also Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003) (“Resolution of a claim of unreasonable delay is ordinarily a complicated and nuanced task requiring consideration of the particular facts and circumstances before the court.”); Hamandi v. Chertoff, 550 F.Supp.2d 46, 54 (D.D.C. 2008) (noting that “the determination of whether an agency's delay is unreasonable is a fact specific inquiry”). Judicial review of such claims “is not limited to the record as it existed at any single point in time, because there is no final agency action to demarcate the limits of the record.” Nat'l Law Ctr. on Homelessness and Poverty v. U.S. Dep't of Veterans Affairs, 842 F.Supp.2d 127, 130 (D.D.C. 2012). Accordingly, the fact that the May 2018 Guidance will not be included in the administrative record does not render it inadmissible as an exhibit to Plaintiffs' motion for summary judgment.

         The May 2018 Guidance contains information that may be germane to the Court's analysis of Plaintiffs' unreasonable delay claim. Evaluating the reasonableness of any delay in agency action “will depend in large part . . . upon the complexity of the task at hand, the significance (and permanence) of the outcome, and the resources available to the agency.” Mashpee Wampanoag Tribal Council, Inc., 336 F.3d at 1102. Defendants acknowledge that the May 2018 Guidance articulates policies and procedures governing the processing of MAVNI naturalization applications. Therefore, the May 2018 Guidance should shed light upon “the complexity of the task at hand, ” id., and provide context for the parties' arguments regarding the reasonableness of USCIS processing times. Further, given that the July 2017 Guidance already is part of the record, reviewing the May 2018 Guidance will allow Plaintiffs and the Court to ascertain whether the more recent Guidance modifies or provides further details regarding the processing and adjudication requirements applicable to MAVNI naturalization applications or supersedes the July 2017 Guidance in any respect. Consequently, the May 2018 Guidance is precisely the type of document that Plaintiffs should be permitted to rely upon as support for their motion for summary judgment.

         Notwithstanding its clear relevance to the APA unreasonable delay claim, the May 2018 Guidance could be withheld from Plaintiffs, and provided only to the Court for in camera review, if a privilege precludes its disclosure. USCIS asserts that the law enforcement privilege shields portions of the May 2018 Guidance from disclosure to Plaintiffs or the public. See July 2018 Renaud Decl. ¶¶ 6-12. In connection with that assertion of privilege, USCIS has submitted for in camera review a privilege log and annotated copy of the May 2018 Guidance reflecting the specific text over which it asserts the law enforcement privilege.[3] See Id. ¶ 8; 6/28/2018 Minute Order (directing Defendants to submit additional documents asserting the privilege).

         The law enforcement privilege is a qualified privilege that allows the federal government to withhold “information that would be contrary to the public interest in the effective functioning of law enforcement.” A.N.S.W.E.R. Coal. v. Jewell, 292 F.R.D. 44, 50 (D.D.C. 2013) (quoting Tuite v. Henry, 181 F.R.D. 175, 176 (D.D.C. 1998)). The privilege “serves to protect ‘the integrity of law enforcement techniques and confidential sources, protects witnesses and law enforcement personnel, safeguards the privacy of individuals under investigation, and prevents interference with investigations.'” Id.; see also In re Anthem, Inc. Data Breach Litig., 236 F.Supp.3d 150, 159 (D.D.C. 2017). To successfully invoke that privilege: (1) “the head of the department having control over the requested information” must formally assert the privilege; (2) the assertion of privilege must be based upon the official's “actual personal consideration” of the relevant documents; and (3) the official must specify in detail “the information for which the privilege is claimed, with an explanation why it properly falls within the scope of the privilege.” Landry v. F.D.I.C., 204 F.3d 1125, 1135 (D.C. Cir. 2000) (internal quotes omitted).

         USCIS has formally asserted the law enforcement privilege by submitting the declaration of Daniel M. Renaud, Associate Director of the Field Operations Directorate at USCIS. Although Mr. Renaud is not the head of USCIS, he reports directly to the Director and has been delegated the authority to assert the law enforcement privilege on his behalf. See July 2018 Renaud Decl. ¶¶ 1-2. Mr. Renaud also is personally familiar with the May 2018 Guidance and the policies and procedures discussed therein. See Id. ¶¶ 3-5. Accordingly, USCIS has established that Mr. Renaud is an official with sufficient responsibility to assert the privilege, and that he has based that assertion of privilege upon his personal consideration of the May 2018 Guidance. See Landry, 204 F.3d at 1135-36 (concluding head of regional division had “sufficient rank” to assert law enforcement privilege ...

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