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Kapende v. United States Department of Homeland Security

United States District Court, District of Columbia

March 26, 2019

KAPS KAPENDE, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE

         Plaintiff Catholic Charities submitted Freedom of Information Act (“FOIA”) requests to the Department of Homeland Security (“DHS”) seeking documents concerning asylum applications submitted by plaintiffs Kaps Kapende and Annie Kaseka. Plaintiffs demand that the agency release, in full, a three-page “Assessment to Refer” memorandum concerning plaintiff Kapende and a four-page “Assessment to Grant Asylum” memorandum concerning plaintiff Kaseka, which the agency is partially withholding pursuant to FOIA Exemption 5. Plaintiffs' suit not only seeks the release of those documents, but also an order “enjoin[ing] defendant from failing to disclose entire Assessments in the future.” Compl. [Dkt. # 1] at 19. Pending before the Court are the parties' motions for summary judgment. For the reasons that follow, the Court will deny plaintiffs' motion and grant defendant's motion.

         BACKGROUND

         The following facts are not in dispute. Plaintiff Kapende was born in the Democratic Republic of the Congo. Compl. ¶ 93. After arriving to the United States he applied for asylum and was interviewed by an asylum officer at the Arlington, Virginia Asylum Office. Id. That asylum officer drafted a document known as an “Assessment to Refer, ” which generally contains “facts, reasons, citations to authorit[ies], and conclusions” for denying an asylum application. Id. ¶¶ 34-35. This document is not given to the applicant. Id. ¶ 36. When an asylum officer denies an application, the case is then referred to an immigration judge for adjudication in removal proceedings. See 8 C.F.R. § 208.14(c)(1).

         Plaintiff Kaseka was also born in the Democratic Republic of the Congo. Compl. ¶ 97. After arriving to the United States she applied for asylum and was interviewed by an asylum officer who granted her asylum. Id. The officer drafted a document known as an “Assessment to Grant Asylum, ” which generally contains “facts, reasons, citations to authorit[ies], and conclusions.” Id. ¶ 32. This document is also not given to the applicant. Id. ¶ 33.

         On or about July 12, 2017, plaintiff Catholic Charities submitted a FOIA request to the United States Citizenship and Immigration Services (“USCIS”), a component of DHS, seeking the following records concerning plaintiff Kapende:

• the notes of the asylum officer;
• the assessment written by the asylum officer;
• any material used by the asylum officer, but not given to him by the individual named above

         Ex. 8 to Compl. [Dkt. # 1-9] (“Kapende FOIA Request”) at 2.[1] USCIS responded to the FOIA request on December 31, 2017, and released to plaintiff Catholic Charities 145 pages in their entirety, 26 pages in part, and withheld 12 pages in full pursuant to FOIA Exemption 5. Id. at 3. Catholic Charities appealed, and the agency released an additional three pages in part, and one page in full, including portions of the asylum officer's Assessment to Refer which it initially withheld in full. Id. at 4; Decl. of Jill A. Eggleston [Dkt. # 13-1] (“Eggleston Decl.”) ¶ 5.

         Additionally, plaintiff Catholic Charities filed a FOIA request on or about September 13, 2017, seeking the following documents concerning plaintiff Kaseka:

• a copy of the notes of the asylum officer
• a copy of the assessment written by the Asylum Officer;
• a copy of the evidence relied upon by the Asylum Officer, not supplied by the applicant;
• a copy of everything in her file

         Kaseka FOIA Request at 2. In response, the agency released to plaintiff Catholic Charities 378 pages in their entirety, 25 pages in part, and it withheld 6 pages in full pursuant to FOIA Exemption 5. Id. at 3; Eggleston Decl. ¶ 6. Catholic Charities administratively appealed, and the agency subsequently released an additional two pages in part, including portions of the Assessment to Grant Asylum which it initially withheld in full. Kaseka FOIA Request at 4; Eggleston Decl. ¶ 6.

         Plaintiff Kapende “wants to know why the asylum officer rejected his application, ” because “he fears defendant [DHS] will use the document against him” at his upcoming immigration court hearing to deport him. Compl. ¶¶ 4, 8. Although plaintiff Kaseka was granted asylum, she also “wants to know what the asylum officer wrote about her.” Id. ¶ 9. Plaintiff Catholic Charities states that these records will be useful in their advocacy efforts representing asylum seekers because it will give the organization insights into “what asylum officers are thinking[:] [w]hat is important to them; what is not important; ...


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