EMUWA et al v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY

Filing 33

MEMORANDUM OPINION re the parties' 14 , 16 Motions for Summary Judgment in light of the 30 , 31 , 32 supplemental briefing and the remand from the D.C. Circuit. Signed by Judge Trevor N. McFadden on 5/9/22. (lctnm2)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMARA EMUWA, et al.,
Plaintiffs,
v.

Case No. 1:20-cv-01756 (TNM)

U.S. DEPARTMENT OF HOMELAND
SECURITY,
Defendant.
MEMORANDUM OPINION
Plaintiffs—four individuals and one organization—seek asylum documents called
Assessments to Refer from the Department of Homeland Security (DHS). Those documents
contain an asylum officer’s impressions after an asylum interview and his recommendation on
whether asylum should be granted. DHS produced the factual portions but withheld the
analytical portions under the deliberative process privilege. In a prior opinion, the Court
confirmed the applicability of that privilege to the withheld information and granted summary
judgment to the agency. See Emuwa v. DHS, No. 20-cv-1756 (TNM), 2021 WL 2255305, at *9
(D.D.C. June 3, 2021). The Court also explained that DHS had shown “why disclosure of the
redacted information in the Assessments would cause harm.” Id. at *8.
Plaintiffs appealed. At the parties’ request, the D.C. Circuit remanded the case for further
consideration in light of its opinion in Reporters Committee for Freedom of the Press v. FBI, 3
F.4th 450 (D.C. Cir. 2021). After supplemental briefing from the parties, the Court finds that

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Reporters Committee does not mandate a different result. The Court thus will again grant
summary judgment to DHS. 1 See Order, ECF No. 24.
The Court incorporates by reference the factual recitation and analysis in its prior
opinion. This remand is limited to foreseeable harm. The Court accordingly will not reconsider
its previous holding that the agency properly invoked the deliberative process privilege.
Some background on foreseeable harm is in order. Under a 2016 amendment to FOIA,
an agency may not withhold otherwise exempt information unless “the agency reasonably
foresees that disclosure would harm an interest protected by” a FOIA exemption. 5 U.S.C.
§ 552(a)(8)(A)(i)(I).
Two recent cases from the D.C. Circuit and one from this Court elucidate the standard for
the foreseeable harm requirement. In Machado Amadis v. Department of State, 971 F.3d 364
(D.C. Cir. 2020), the agency withheld under the deliberative process privilege some
recommendations, discussion, and search notes about FOIA processing. After finding the
agency properly invoked the privilege, see id. at 370, the court also held that it had met the
foreseeable harm requirement, see id. at 371. The agency’s declaration said that disclosure
would discourage candid discussions among line attorneys, thereby hindering “the forthright
internal discussions necessary for efficient and proper adjudication of administrative appeals.”
Id. (quoting agency declaration). The Circuit denied that the agency had provided only
“generalized assertions that ‘could’ chill deliberations.” Id. (quoting plaintiff’s brief). The
agency instead had “specifically focused on the information at issue” in the forms and had

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The D.C. Circuit did not explicitly vacate the Court’s Order granting summary judgment,
arguably leaving that judgment intact. See Per Curiam Order, No. 21-5131, Emuwa v. DHS
(D.C. Cir., Nov. 12, 2021). But the Court treats the Circuit’s mandate as an implied vacatur
because if Reporters Committee did change the outcome, the Court would issue a new Order.
And the Court could give that new Order only if the Circuit meant to vacate the previous one.
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“concluded that disclosure of that information ‘would’ chill future discussions.” Id. (quoting
agency declaration). Thus, the agency permissibly withheld the privileged information.
The D.C. Circuit returned to the foreseeable harm requirement in Reporters Committee
for Freedom of the Press v. FBI, 3 F.4th 350 (D.C. Cir. 2021). There, the plaintiff submitted
multiple FOIA requests for records about FBI agents impersonating reporters. See id. at 359.
The FBI withheld a bevy of information under the deliberative process privilege, including
emails between Director Comey and agency officials about a public editorial written by Comey
about the incident. See id. at 360–61. The Committee challenged those withholdings.
The court held that the agency had not met the foreseeable harm requirement. The
agency’s declaration had said that disclosure “would have an inhibiting effect upon agency
decisionmaking” because it “would chill full and frank discussions” inside the agency. Id. at
370. Decisionmakers would be “less candid and more circumspect in expressing their thoughts.”
Id. The court rejected this explanation as an insufficient “perfunctory statement.” Id. at 372.
The agency had merely “mouth[ed] the generic rationale for the deliberative process privilege
itself” rather than provide a “focused and concrete” explanation for why disclosure would, “in
the specific context of the agency action at issue, actually impede those same agency
deliberations going forward.” Id. at 370. The agency’s failure to show a foreseeable harm
required disclosure of draft reports, even though the deliberative process privilege covered those
reports. See id. at 371.
After Machado Amadis and Reporters Committee, agencies must make two showings.
First, the agency must, as always, show that a FOIA exemption applies to withheld information.
See Jud. Watch, Inc. v. Dep’t of Treasury, 802 F. Supp. 2d 185, 193 (D.D.C. 2011). Second, the
agency must articulate, in a “focused and concrete” way, the harm that would result from

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disclosure, including the basis and likelihood of that harm. Reporters Comm., 3 F.4th at 370.
Failure to make both showings warrants disclosure. See Ctr. for Investigative Reporting v. CBP,
436 F. Supp. 3d 90, 105–06 (D.D.C. 2019) (“In sum, FOIA now requires that an agency release a
record—even if it falls within a FOIA exemption—if releasing the record would not reasonably
harm an exemption-protected interest and if its disclosure is not prohibited by law.”) (cleaned
up).
This Court applied those principles in Reporters Committee for Freedom of the Press v.
U.S. Customs and Border Protection, — F. Supp. 3d —, No. 18-cv-155 (TNM), 2021 WL
4843970 (D.D.C. Oct. 18, 2021). There, CBP withheld information related to a summons issued
to the owner of a Twitter account critical of the agency. See id. at *1. On foreseeable harm, the
agency asserted that disclosure “would hamper [its] day-to-day operations because employees
would not feel comfortable” divulging their views. Id. at *7. For other information, the agency
said that officials might “not share their views,” id. at *8, or “voice their ideas or concerns
freely,” id. at *10, if the documents were disclosed. The agency also said that employees “must
feel candid” when seeking input from colleagues, id. at *9, and that disclosure “would have a
chilling effect on communication” between those employees,” id. at *16.
The Court rejected these assertions as insufficient statements of foreseeable harm. The
agency was concerned “only with a lack of candor” and the effect on agency decisions. Id. at *9.
Nowhere did it link those risks of disclosure to the specific information being withheld. And
general statements about candor, without more, merely restated “the generic rationales for the
privilege itself.” Id. at *16 (cleaned up). Because of the agency’s “lackluster” showing of
foreseeable harm, the Court ordered disclosure of all information withheld under the deliberative
process privilege. Id. at *17.

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*

*

*

Here, DHS has submitted a supplemental declaration explaining the foreseeable harm
from disclosure of the Assessments. See Supp. Decl. of Cynthia Munita, ECF No. 30-1 (Munita
Decl.). To properly adjudicate asylum applications, asylum officers must feel free “to provide
candid assessments of the evidence and eligibility criteria to their supervising officials.” Id. ¶ 11.
Asylum officers therefore expect that “only [ ] those within USCIS” will view the analysis
portions of the Assessments. Id.
Disclosing that analysis would impact USCIS’s “ability to make sound judgments on
asylum applications.” Id. ¶ 14. “[W]ith the knowledge that their views and characterizations
would be made public,” asylum officers would “temper their discussions.” Id. That restraint
“would seriously impair USCIS’s mission in adjudicating those petitions.” Id. Asylum officers
should focus on “the substance of the information they are providing,” not whether their
impressions “may at some point be made publicly available.” Id.
More, bad actors could leverage the internal deliberations of asylum officers “to tailor
asylum applications and testimony in a favorable, but fraudulent, manner.” Id. ¶ 15. For
example, how asylum officers evaluate an applicant’s credibility or determine certain pertinent
facts would allow bad actors to “better fabricate evidence or testimony.” Id. And since asylum
officers would know that their own impressions could be disclosed and used that way, they
would be “less forthcoming in their assessments and recommendations.” Id. That would “stifle
the free flow of information between asylum officers.” Id.
Given this detailed explanation, the Court easily rejects Plaintiffs’ argument that the
declaration is “boilerplate.” See Pls.’ Supp. Br. at 19, ECF No. 31 (Pls.’ Br.). 2 Unlike the

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All page citations refer to the pagination generated by the Court’s CM/ECF filing system.
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unmoored agency assertions in this Court’s Reporters Committee case, DHS “specifically
focused on the information at issue” in the Assessments and explained how disclosure of that
information “would chill future internal discussions.” Machado Amadis, 971 F.3d at 371
(cleaned up). Specifically, asylum officers would “temper their discussions” of a particular
applicant and would focus less on “the substance of the information” in the asylum file. Munita
Decl. ¶ 14. And the agency discussed how disclosure would impede agency deliberations in a
“specific context,” Reps. Comm., 3 F.4th at 370—namely, “the full and proper analysis and fair
consideration of [ ] asylum requests on the merits.” Munita Decl. ¶ 14. That specificity mirrors
the adequate declaration in Machado Amadis, where the agency discussed how disclosure would
hinder “proper adjudication of administrative appeals.” 971 F.3d at 371 (cleaned up).
These robust explanations from DHS carry the agency’s burden under the foreseeable
harm requirement.
Plaintiffs respond that DHS has released Assessments in recent (and not so recent) cases.
See Pls.’ Br. at 20, 26, 33. The Court rejected this same argument in its prior opinion. See
Emuwa, 2021 WL 2255305, at *9. An agency does not forfeit or waive a FOIA exemption “as to
an entire class of documents by voluntarily releasing one document of that type.” Bayala v.
DHS, 264 F. Supp. 3d 165, 174 (D.D.C. 2017); see Abtew v. DHS, 808 F.3d 895, 900 (D.C. Cir.
2015) (“[A]n agency does not forfeit a FOIA exemption simply by releasing similar documents
in other contexts.”). So too an agency does not forfeit its ability to assert foreseeable harm as to
documents in that same class. See Emuwa, 2021 WL 2255305, at *9.
Likewise, DHS’s release of “other similar documents,” does not undermine its assertion
of harm as to Assessments. Pls.’ Br. at 31. As the Court noted, those documents “relate to

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different asylum procedures” and thus do not affect whether disclosing Assessments will lead to
foreseeable harm. Emuwa, 2021 WL 2255305, at *9.
Plaintiffs also dismiss DHS’s emphasis on potential fraud as an inappropriate assertion of
foreseeable harm. They cite the statutory text of the requirement itself, which requires DHS to
foresee that disclosure “would harm an interest protected by” a FOIA exemption. 5 U.S.C.
§ 552(a)(8)(A)(i)(I). According to Plaintiffs, the harm envisioned in Exemption 5—under which
DHS asserts the deliberative process privilege—is a lack of candor within agencies, not fraud by
bad actors. See Pls.’ Br. at 22–23.
The Court disagrees. For one thing, DHS’s discussion of the need for candid evaluations,
see Munita Decl. ¶ 14, is enough to carry the agency’s burden without any reference to fraud.
More, DHS has expressly tied its fraud concerns to candor inside the agency. As DHS explains,
asylum officers will “be less forthcoming in their assessments and recommendations” if they
know that bad actors could use those recommendations. Munita Decl. ¶ 15. That type of harm—
the “chilling of candid advice”—is “exactly what the privilege seeks to prevent” under
Exemption 5. Machado Amadis, 971 F.3d at 371. True, DHS mentions fraud, but only because
the possibility of fraud would dissuade full and fair deliberation. That is a proper assertion of
foreseeable harm under Exemption 5. See Cause of Action Inst. v. Export-Import Bank, No. 19cv-1915 (JEB), 2022 WL 252028, at *9 (D.D.C. Jan. 27, 2022) (upholding assertion of
foreseeable harm under Exemption 5 when disclosure would have informed bad actors of agency
vulnerabilities, thereby chilling internal agency deliberations).
Plaintiffs’ other arguments are unavailing. First, Plaintiffs argue that the declarant,
Cynthia Munita, lacks personal knowledge and “relies too much on un-sourced hearsay” in her
declaration. Pls.’ Br. at 16. Not so. In the first place, Munita worked as an immigration services

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officer for many years before becoming a FOIA officer. See Munita Decl. ¶ 1. She has at least
some knowledge about how immigration officials conduct their business. More, “FOIA
declarants may include statements in their declarations based on information they have obtained
in the course of their official duties.” Hainey v. DOI, 925 F. Supp. 2d 34, 41 (D.D.C. 2013)
(cleaned up). That includes information “relayed to [the declarant] by her subordinates.”
DiBacco v. Dep’t of the Army, 926 F.3d 827, 833 (D.C. Cir. 2019). Munita attests that her
declaration includes information provided “by other USCIS employees.” Munita Decl. ¶ 4. That
statement is enough.
The Court also affords agency declarations a presumption of good faith rebuttable only
by “contradictory evidence in the record or by evidence of the agency’s bad faith.” Aguiar v.
DEA, 865 F.3d 730, 734–35 (D.C. Cir. 2017). Plaintiffs’ musings about who told what to
Munita, see Pls.’ Br. at 19, are “speculative claims” incapable of rebutting that presumption.
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).
The same presumption likewise defeats Plaintiffs’ argument that a typographical error in
the declaration shows Munita’s lack of knowledge. See Pls.’ Br. at 29. She suggests in one
fragment of one sentence that multiple people write the Assessments. See Munita Decl. ¶ 15
(“Moreover, revealing the internal deliberations and analysis of USCIS asylum and supervisory
asylum officers . . . .”). That suggestion is wrong—only asylum officers write the Assessments.
See Def.’s Reply, ECF No. 32 at 6, n.1. The Court agrees with the agency, however, that this
mistake is a “trivial matter” insufficient to rebut the good-faith presumption afforded the
declaration, which everywhere else affirms that only asylum officers contribute to Assessments.
SafeCard, 926 F.2d at 1202.

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Second, Plaintiffs argue that Munita nowhere explains “how officers would behave
differently in the future” or “how information in one assessment leads to fraud in a future case.”
Pls.’ Br. at 23. Plaintiffs are wrong on both counts. Munita describes how officers would be less
forthcoming were their assessments disclosed publicly, thereby harming the agency’s mission.
See Munita Decl. ¶¶ 14–15. That is a sufficient explanation of future officer behavior. See
Machado Amadis, 971 F.3d at 371 (explaining that disclosure would discourage government
actors from “candidly discussing their ideas . . . thus impairing the forthright internal discussions
necessary for efficient and proper” agency adjudications (cleaned up)). And Munita clearly
explains how disclosure could lead to fraud. Bad actors would “tailor” their applications—such
as by “fabricat[ing] evidence or testimony”—to receive asylum “under false pretenses.” Munita
Decl. ¶ 15.
Third, Plaintiffs ding the declaration for not adequately explaining “how disclosure of
sources or authorities cited in [A]ssessments would result in harm.” Pls.’ Br. at 26. The Court
easily rejects this argument. DHS has adequately explained what harm would result from
disclosure of an asylum officer’s “analyses, impressions, and recommendations” of a particular
applicant. Munita Decl. ¶ 14. Cited sources are part of that analysis, so DHS’s adequate
assertion of harm for the documents also applies to the sources cited within.
Fourth, Plaintiffs make multiple public policy arguments for why DHS should disclose
the Assessments. See, e.g., Pls.’ Br. at 27 (“What if a source is unreliable?”); 28 (“Are asylum
officers following their instructions?”). Plaintiffs even compare Assessments to district court
decisions, implying that disclosure will help transparency in government. See id. at 25. These
arguments are far afield of foreseeable harm, the only topic for remand. They are therefore
irrelevant.

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Finally, Plaintiffs assert that DHS has not released all reasonably segregable information.
See Pls.’ Br. at 34–35. Like Plaintiffs’ public policy arguments, segregability is outside the
scope of this remand. The Court stands by its segregability analysis in the previous opinion. See
Emuwa, 2021 WL 2255305, at *10–*11.
*

*

*

In sum, DHS has adequately shown that foreseeable harm would result from disclosure of
the Assessments. Reporters Committee does not counsel otherwise. For the reasons discussed
here and in the prior opinion, the Court will grant the agency’s motion for summary judgment
and will deny Plaintiffs’ cross motion. A separate Order will issue.

2022.05.09
17:20:56 -04'00'
Dated: May 9, 2022

TREVOR N. McFADDEN, U.S.D.J.

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