De Abadia-Peixoto et al v. United States Department of Homeland Security et al

Filing 128

THIRD ORDER RE IN CAMERA REVIEW re 124 Response ( Non Motion ), filed by the United States. The Government must respond by March 6, 2013. Signed by Judge Kandis A. Westmore on 2/27/2013. (kawlc1, COURT STAFF) (Filed on 2/27/2013)

Download PDF
1 2 United States District Court Northern District of California 3 4 5 UELIAN DE ABADIA-PEIXOTO, et al., 6 Plaintiffs, 7 Case No.: CV 11-04001 RS (KAW) THIRD ORDER RE IN CAMERA REVIEW v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., 8 9 Defendants. 10 United States District Court Northern District of California 11 The Court issued its second order regarding the ongoing in camera review on February 1, 12 2013. (See Dkt. No. 122.) In that order, the Court ordered the Government “to comply with the 13 January 7, 2013 order to provide the date and time the August 2011 [restraints] policy [for asylum 14 seekers] was finalized through the submission of a sworn declaration.” Id. 15 On February 8, 2013, Christopher W. Hollis, on behalf of the Government, filed the 16 response, which included the sworn declaration of Andrew Lorenzen-Strait, Public Advocate for 17 Immigration and Customs Enforcement (ICE). (See Dkt. No. 124.) Mr. Hollis represented that 18 Mr. Lorenzen-Strait’s declaration would “provide the date and time the August 2011 policy was 19 first finalized”. Id. Mr. Lorenzen-Strait’s declaration states, however, that August 19, 2011 was 20 the date that ICE’s “initial guidance notice governing the use of restraints on asylum seekers 21 during immigration court proceedings” was finalized and an email notice was disseminated to 22 Office Directors and Deputy Field Officers. (Dkt. No. 124, Lorenzen-Strait Decl., at 1:22-23.) 23 Exhibit A to Lorenzen-Strait’s Declaration is “Enforcement and Removal Operations Notice” 24 number 009.2011(11152), which is called a “guidance” document, with the subject “ERO Field 25 Guidance on Use of Restraints for Asylum Seekers during Immigration Court Proceedings.” 26 The Court did not ask what date the guidance document was finalized, or generated, but 27 rather what date and time the policy decision was first made regarding the restraints policy for 28 asylum seekers. (2/1/13 Order, Dkt. No. 122.) For that reason, Mr. Lorenzen-Strait’s declaration 1 is non-responsive. The proximate date and time is relevant for the purposes of determining 2 whether the deliberative process privilege applies to Document Nos. 18320 and 18345, which are 3 emails that were transmitted on August 9, 2011 and August 11, 2011, respectively. (See 11/16/12 4 Joint Discovery Letter Order, Dkt. No. 110, for a discussion of the deliberative process privilege.) Defendants previously produced documents for review in camera that suggested that the 6 restraints policy for asylum seekers would be finalized on or around August 8, 2011. In light of 7 those documents, it is unlikely that the policy decision was made on the same date that the 8 guidance governing the use of restraints was disseminated to the field offices. The Court has 9 given the Government two opportunities to provide the date and time the decision regarding the 10 restraints policy was made. So, unless the Declarant will state under penalty of perjury that the 11 United States District Court Northern District of California 5 policy decision was made on August 19, 2011—the same date the guidance document was 12 generated and the policy disseminated to the field offices— the Court will err on the side of 13 disclosure and assume that the policy decision was made on August 8, 2011, the date originally 14 anticipated by the Government, rather than the date the guidance document was distributed. 15 The Court notes that the deliberative process privilege is a qualified one, such that even if 16 a document is privileged, courts may order discovery. See F.T.C. v. Warner Communications Inc., 17 742 F.2d 1156, 1161 (9th Cir. 1984). Privileged materials may be obtained if the propounding 18 party’s “need for the materials and the need for accurate fact-finding override the government's 19 interest in non-disclosure. Id. at 1161 (citing United States v. Leggett & Platt, Inc., 542 F.2d 655, 20 658 (6th Cir.1976)). 21 In light of the above, the Government shall provide a sworn declaration by March 6, 2013 22 providing the date and time that the policy decision on the restraints policy for asylum seekers 23 was made. Failure to comply will result in Document Nos. 18320 and 18345 being ordered 24 produced without redaction on the basis that they are not subject to the deliberative process 25 privilege. 26 27 IT IS SO ORDERED. DATE: February 27, 2013 ___________________________ KANDIS A. WESTMORE United States Magistrate Judge 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?