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)

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United States District Court
Northern District of California

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UELIAN DE ABADIA-PEIXOTO, et al.,

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Plaintiffs,

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Case No.: CV 11-04001 RS (KAW)
THIRD ORDER RE IN CAMERA REVIEW

v.
U.S. DEPARTMENT OF HOMELAND
SECURITY, et al.,

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Defendants.

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United States District Court
Northern District of California

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The Court issued its second order regarding the ongoing in camera review on February 1,

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2013. (See Dkt. No. 122.) In that order, the Court ordered the Government “to comply with the

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January 7, 2013 order to provide the date and time the August 2011 [restraints] policy [for asylum

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seekers] was finalized through the submission of a sworn declaration.” Id.

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On February 8, 2013, Christopher W. Hollis, on behalf of the Government, filed the

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response, which included the sworn declaration of Andrew Lorenzen-Strait, Public Advocate for

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Immigration and Customs Enforcement (ICE). (See Dkt. No. 124.) Mr. Hollis represented that

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Mr. Lorenzen-Strait’s declaration would “provide the date and time the August 2011 policy was

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first finalized”. Id. Mr. Lorenzen-Strait’s declaration states, however, that August 19, 2011 was

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the date that ICE’s “initial guidance notice governing the use of restraints on asylum seekers

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during immigration court proceedings” was finalized and an email notice was disseminated to

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Office Directors and Deputy Field Officers. (Dkt. No. 124, Lorenzen-Strait Decl., at 1:22-23.)

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Exhibit A to Lorenzen-Strait’s Declaration is “Enforcement and Removal Operations Notice”

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number 009.2011(11152), which is called a “guidance” document, with the subject “ERO Field

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Guidance on Use of Restraints for Asylum Seekers during Immigration Court Proceedings.”

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The Court did not ask what date the guidance document was finalized, or generated, but

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rather what date and time the policy decision was first made regarding the restraints policy for

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asylum seekers. (2/1/13 Order, Dkt. No. 122.) For that reason, Mr. Lorenzen-Strait’s declaration

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is non-responsive. The proximate date and time is relevant for the purposes of determining

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whether the deliberative process privilege applies to Document Nos. 18320 and 18345, which are

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emails that were transmitted on August 9, 2011 and August 11, 2011, respectively. (See 11/16/12

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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

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restraints policy for asylum seekers would be finalized on or around August 8, 2011. In light of

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those documents, it is unlikely that the policy decision was made on the same date that the

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guidance governing the use of restraints was disseminated to the field offices. The Court has

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given the Government two opportunities to provide the date and time the decision regarding the

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restraints policy was made. So, unless the Declarant will state under penalty of perjury that the

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United States District Court
Northern District of California

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policy decision was made on August 19, 2011—the same date the guidance document was

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generated and the policy disseminated to the field offices— the Court will err on the side of

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disclosure and assume that the policy decision was made on August 8, 2011, the date originally

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anticipated by the Government, rather than the date the guidance document was distributed.

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The Court notes that the deliberative process privilege is a qualified one, such that even if

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a document is privileged, courts may order discovery. See F.T.C. v. Warner Communications Inc.,

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742 F.2d 1156, 1161 (9th Cir. 1984). Privileged materials may be obtained if the propounding

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party’s “need for the materials and the need for accurate fact-finding override the government's

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interest in non-disclosure. Id. at 1161 (citing United States v. Leggett & Platt, Inc., 542 F.2d 655,

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658 (6th Cir.1976)).

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In light of the above, the Government shall provide a sworn declaration by March 6, 2013

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providing the date and time that the policy decision on the restraints policy for asylum seekers

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was made. Failure to comply will result in Document Nos. 18320 and 18345 being ordered

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produced without redaction on the basis that they are not subject to the deliberative process

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privilege.

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IT IS SO ORDERED.
DATE: February 27, 2013

___________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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