Heartland Alliance National Immigration Justice Center v. United States Department of Homeland Security et al

Filing 52

OPINION and Order Signed by the Honorable Charles R. Norgle, Sr on 2/17/2016. Mailed notice(sj, )

IN THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HEARTLAND ALLIANCE NATIONAL
IMMIGRATION JUSTICE CENTER,
Civil Action No.

Plaintiff,

12

CY 9692

Hon. Charles R. Norgle

v.

LINITED STATES DEPARTMENT
HOMELAND SECURITY, et al.,

Defendants.

OF

)
)
)
)

OPINION AND ORDER
This lawsuit arises out of a Freedom of Information Act ("FOIA") request that Plaintiff
Heartland Alliance National Immigration Justice Center ("Plaintiff') sent to several federal
agencies. Since

filing this lawsuit, the parties have resolved many of their disputes, however, the

applicability of two FOIA exemptions remain in controversy, 5 U.S.C. $$ 552(bX7)(C) and (E)
(respectively, "Exemption 7(C)" and "Exemption 7(E)"). Before the Court is a motion for
summary judgment regarding Exemption 7(E) that was filed by Def-endants United States

Department of Homeland Security, United States Citizenship and Immigration Services

("USCIS"), United States Immigration and Customs Enforcement, United States Office of Civil
Rights and Civil Liberties, United States Department of Homeland Security Office of General
Counsel, and United States Department of Homeland Security Privacy Office (collectively,

"Defendants"). Also before the Court is Plaintiff s cross-motion for summary judgment
regarding Exemption 7(C). For the following reasons, Defendants' motion is granted and

Plaintiff s cross-motion is granted.

I. BACKGROUND
Plaintiff is

a non-profit organization

based

in

information and legal aid to immigrants seeking refuge

Chicago, Illinois, which provides

in this

country. Defendants ate

a

conglomerate

of

federal agencies that serve

to

adjudicate whether applicants from foreign

countries can receive immigration benefits; namely U.S. citizenship, permanent residence, or

work visas.

On September 1, 2011, Plaintiff submitted a FOIA request to several federal agencies
under 5 U.S.C. $ 552, seeking information related to Tier III terrorist organizations as defined by

the Immigration and Nationality Act

("NA"),8

subsequently received some, but not all,

U.S.C.

$

of the materials in

1182(aX3)(BXviXIII). Plaintiff
response

to its request; it

was

dissatisfied with the materials that were produced. On December 5, 2012, Plaintiff filed this
lawsuit against Defendants seeking a declaratory judgment and injunctive relief to obtain all the
materials it requested.

The parties have been able to resolve almost all of their disputes by entering into

a

settlement agreement on October 24, 2014. The settlement agreement required Defendants to

produce documents associated with the Tier

III

designation, such as: final reports, policy

statements, policy manuals, agency interpretations, and agency training materials. In addition,
Defendants, were to:
produce copies of completed2l2(a)(3XB) Exemption Worksheets from A-files

of

individuals who were granted or denied an exemption pursuant to INA
212(d)(3XB)(i) from January 1,2010 to June 1,2013, where the individual had
activities and/or affiliations with an organization that fell within the definition of a
Tier III organization, as defined by INA 212(aX3XBXvi)(lII), at the time of the
activity or affiliation.

Vauehn Index, Ex. 1, Settlement Agreement and Release I2.2(g). However, "[n]othing in [the]

Agreement preclude[d] the Agency from applying any appropriate FOIA exemptions to
information covered by [the] Agreement." Id. at n 2.4. In the settlement agreement, the parties

explicitly left one issue for the Court to decide: "the issue of whether the names of organizations

that either now or at some time in the past fell within the INA definition of a Tier III
organization are exempt from disclosure under the FOIA." Id. at

1T

3.1.

Following the terms

of the agreement, Defendants

provided ninety Exemption

Worksheets, over 180 pages, to Plaintiff on April 22,2015, and filed a Vaushn Index with the

Court on the same day. See Vaughn v. Rosen, 484 F .2d 820 (D.C. Cir. 1973). The Vaughn Index
describes the produced documents-the Exemption

Worksheets-in detail and explains why the

FOIA permits Defendants to redact certain portions of them. The Exemption Worksheets are
used by USCIS to document: (1) whether an applicant was affiliated with a Tier

organization;

(2) whether an applicant's

inadmissible under

8 U.S.C. $

terrorism-related activity rendered

III

terrorist

him or

her

1182(a)(3XB); and (3) whether an applicant received an

exemption from the terrorism-related inadmissibility finding. Defendants redacted from these
Exemption Worksheets the sections containing the applicant's name, case number, date of birth,
and country

of origin; the name of the Tier III terrorist organization; and the

names

of the

immigration officers who completed or approved the form. The produced Exemption Worksheets
are approximately one percent of all the Exemption Worksheets prepared by USCIS staff during

the relevant time period.

In addition to the Vaughn Index, and in support of their summary judgment motion,
Defendants have submitted
Associate Director

a declaration from Matthew Emrich ("Emrich"), the Acting

of the Fraud Detection and National Security Directorate at USCIS,

and

Aaron Martz ("Martz"), the Chief of the International Division of the Fraud Prevention Program

Office at the U.S. Department of State. Defendants now request that the Court enter summary
judgment in their favor on the issue of whether the names of Tier III terrorist organizations must
be disclosed; arguing that Exemption 7(E) precludes their disclosure.

Plaintiff contests the applicability of the exemption, arguing that the names of the Tier III
terrorist organizations do not qualify under Exemption 7(E) for three reasons. First, Defendants
have not shown that the names are a non-public technique, procedure, or guideline used for law

enforcement purposes. Second, even

guideline, the criteria

for

if

discerning

the names are considered a technique, procedure, or

a Tier III

organization

is

already public; therefore,

Exemption 7(E) does not apply. Third, Defendants have not met their burden of establishing an
uncontroverted reasonable risk that disclosure

will result in circumvention of the law. Plaintiff

does not contest that the records produced by Defendants are used for law enforcement purposes.

Plaintiff also cross-moves for summary judgment contending that Defendants' censoring

of the applicant's date of birth and nationality from the Exemption
impermissible application

of

Exemption 7(C).

In

support

Worksheets was an

of its motion, one of Plaintiffs

attorneys has submitted fifteen exhibits; one such exhibit

is ten of the ninety Exemption

Worksheets produced by Defendants. No documents have been submitted to the Court for in
camera review.

II. DISCUSSION

A. Standard

of Decision

"In reviewing cross-motions for summary judgment, [the Court] takefs] the motions

one

at a time and then, as usual, construe[s] all facts and draw[s] all reasonable inferences in favor

of

the non-moving party." Advance Cable Co.. LLC v. Cincinnati Ins. Co., 788 F.3d 743,746 (7th

Cir. 2015). "Summary judgment is appropriate when'the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter

Northfield Ins. Co. v. Citv of Waukegan, 701 F.3d 1124,
Civ. P. 56(a));

see also Celotex Corp.

of law."'

ll28 (7th Cir.2012) (quoting

Fed. R.

v. Catrett, 477 U.S. 317 ,322 (1986).

B. The Immigration and Nationality Act
The Immigration and Nationality Act defines Tier III terrorist organizations as "a group

of two or more individuals, whether organized or not, which engages in [terrorist activity]." 8
U.S.C. $ I 182(a)(3XB)(viXIII). Terrorist activity is broadly defined and generally includes acts

or threats of violence. See id. $ I 182(a)(3XBXiii). A person can engage in terrorist activities in
many ways, some as simple as providing transportation or money to a terrorist organization. See

id. $ I182(a)(3)(B)(iv). The names of Tier I and II terrorist organizations (for example, al-Qa'ida
or Boko Haram) are published and applicants found to be members of those listed organizations
are unconditionally inadmissable in this country. See id. $ 1182(a)(3XBXi)(V). An applicant

found to be a member of a Tier

III organization, however,

can be admitted

if they "demonstrate

by clear and convincing evidence that the alien did not know, and should not reasonably have

known, that the organization was a terrorist organization." Id. $ I 182(a)(3XBXiXVD.
Nonetheless, applicants found to be inadmissable for their membership in a Tier III organization
can still receive immigration benefits

if they

are granted an exemption under 8 U.S.C.

$ 1182(dX3XBXD (such as providing material support while under duress).
C. The Freedom of Information Act

As Congress has amended the FOIA, it has limited executive agencies' discretion in
keeping records confidential and has implemented a policy favoring disclosure. U.S. Dep't of
Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749,754 (1989). The Supreme Court

has also repeatedly "stressed the fundamental principle

of public access to

Govemment

documents that animates the FOIA." John Doe Aggncy v. John Doe Corp., 493 U.S. 146, 151

(1989). The "FOIA thus mandates that an agency disclose records on request, unless they fall

within one of nine exemptions." Milner v. Dep't of Navy, 562 U.S. 562, 565 (201 1). When

an

agency claims an exemption, "the FOIA expressly places the burden 'on the agency to sustain its

action' and directs the district courts to 'determine the matter de novo."'Reporters Comm., 489
U.S. at 755 (quoting 5 U.S.C. $ 552(aXa)(B)). "A district court may grant summary judgment to

the government in a FOIA case only

if the agency affidavits

and the justifications for nondisclosure

in

describe the documents withheld

enough detail and

with sufficient specificity

to

demonstrate that material withheld is logically within the domain of the exemption claimed."
Patterson v. IRS, 56 F.3d 832, 836 (7th

Cir. 1995) (internal quotations and citations omitted).

I. Exemption 7(E)
The Court turns first to Defendants' argument that Exemption 7(E) legally entitles them

to redact the names of the Tier III terrorist organizations from the Exemption

Worksheets.

Exemption 7(E) allows censor of (1) "techniques and procedures [used] for law enforcement
investigations or prosecutions," or (2) law enforcement "guidelines"

if

the guidelines "could

reasonably be expected to risk circumvention of the law." 5 U.S.C. $ 552(bX7)(E). Following
general rules of grammar and punctuation:

[t]he sentence structure of Exemption (bX7XE) indicates that the qualifying
phrase ('if such disclosure could reasonably be expected to risk circumvention of
the law') modifies only 'guidelines' and not 'techniques and procedures.' This is
because the two altemative clauses that make up Exemption 7(E) are separated by
a comma, whereas the modifying condition at the end of the second clause is not
separated from its reference by anything at all.

Allard K. Lowenstein Int'l Human Rights Proj. v. Dep't of Homeland Sec.,626F.3d 678, 681

(2d Cir. 2010). Therefore,

if the Court determines that Defendants have demonstrated

enough detail that the names of Tier

III

with

organizations constitute techniques and procedures, then

their nondisclosure is justified as a matter of law.

If the Court finds that the withheld

names

qualify as guidelines, then to justify the withholding, Defendants must also show that there is
reasonable expectation that disclosure

a

will result in circumvention of the law. Alternatively, if

the Court finds that the names are not techniques, procedures, or guidelines, then the Tier

III

names must be disclosed.

The Court agrees with Plaintiff that the names of Tier

III organizations

are not techniques

or procedures. The techniques and procedures for designating a group of individuals as a Tier III
organization are largely encompassed in the comprehensive Immigration and Nationality Act. On

the other hand, a guideline is "an indication or outline of future policy or conduct." Allard K.
6

Lowenstein

Int'l Human Rights

Proj.

, 626 F.3d at 682 (internal quotation omitted). And in the

context of this case, immigration officers use the names of the Tier

III

organizations as an

indication, or guideline, in future adjudications to determine the applicant's admissibility in the

United States and whether the applicant is entitled to an exemption. Therefore, the Court finds
that the names of the Tier

III

organizations qualif, as a guideline. Accordingly, the Court rejects

Plaintiffls argument that Tier

III

names are not records

or information used as techniques,

procedures or guidelines in law enforcement.
To justify that disclosure could reasonably be expected to risk circumvention of the law,
Defendants rely on the declarations of Emrich and Martz. Emrich states that "[p]ublic disclosure

of the names of such organizations, as captured in the Exemption Worksheets produced in this
case, would enable aliens

to conceal or misrepresent ties that they have with Tier III

organizations." Defs.' Mot. for Summ. J., Ex. 1 fl 13. Emrich further opines that "[a]n alien who
becomes aware that

a particular group has been found to fall within the definition of

undesignated organization

will

an

have a strong incentive to falsify or misrepresent encounters,

activities, or associations that he or she may have had with that group" and he provides five cases

that are available as public records to support his opinion Id. at u 13-14; see. e.s.. Hussain v.
Mukasey, 518 F.3d 534,537-38 (7th Cir. 2008); Olayan v. Holder, 833 F.Supp.2d 1052, 1060

(S.D. Ind. Dec. 15,2011).Martz seconds Emrich's opinion in almost identical fashion, stating
that "public disclosure of the names

of [Tier III]

organizations would inform aliens who are

intent on circumventing the law to conceal or misrepresent ties that they might have with these
organizations." Defs.' Mot. Summ. J., Ex. 2 n 6. Defendants argue that Martz and Emrich's

affidavits, combined with the Vaughn index, suffrce to show that the names
organizations fall within the scope of Exclusion 7(E).

of Tier III

Plaintiff counters, arguing "[t]hat there is no reasonable risk of circumvention [that]
makes sense because[] any knowing affiliate of a terrorist organization would certainly hide that

affiliation regardless of whether they knew the United States had

in fact

determined the

organization was terroristic in nature." Pl.'s Cross-Mot. for Summ. J. 13. Plaintiffs counterargument is well-taken, because
the publication of Tier

reason

if any applicant intends to circumvent the laws of this country,

III names probably will not dissuade him or her. However,

for not disclosing the list of Tier III names is to promote honest

Defendants'

responses

to

the

immigration officers' inquiries and truthful answers are required to properly assess an applicant's
immigration eligibility.

An

applicant's eligibility

for immigration benefits is

based

on the

applicant's

background, such as "criminal activity, travel history, military training, and associations[,]" and
the importance of collecting truthful statements is heightened because an applicant's association

with a Tier III organization frequently "comes from the applicant's own testimony." Defs.' Mot.

for Summ. J., Ex.2 flfl 11, 13. Martz's statement makes

sense because

it would

otherwise be

difficult for U.S. officials to identify or learn about Tier III organizations, which are located in
foreign countries and can be as small as two people. Given how information on Tier III
organizations is collected, coupled with the documented cases in which immigration applicants
have lied about or omitted their association with Tier
release

of all Tier III

III organizations, it is reasonable

that the

organization narnes, not just the ones revealed through the course

of

litigation, could influence applicants to misrepresent or conceal their past or present involvement

with foreign organizations. Furtheffnore, the incentive for an applicant to lie about his or her
involvement with

a Tier III

organization

is

augmented because the unpublished

Tier III

classification has a more a lenient immigration benefits eligibility standard than the published

Tier

I

and

II

organizations. Therefore, the Court finds that releasing the names

of Tier III

organizations could reasonably lead to circumvention of the law.

In sum, Defendants must provide

enough specific detail to justify that the "material

withheld is logically within the domain of the exemption claimed." Patterson, 56 F.3d at 836.
The Court finds that the Tier

III

names are guidelines, and based on the affidavits provided,

full

disclosure could reasonably lead to a circumvention of the law. Accordingly, Defendants have
met their burden to show that Exemption 7(E) is appropriate here.

I. Exemption

7(C)

Defendants also invoked Exemption 7(C) to warrant redacting the applicants' date of

birth and nationality on the Exemption Worksheets that they provided to Plaintiff. "Exemption
7(c) excludes records or information complied for law enforcement purposes, 'but only to the
extent that the production of such [materials] ... could reasonably be expected to constitute an
unwarranted invasion

of personal privacy."' Reporters Comm., 489 U.S. at 756 (quoting

5

U.S.C. $ 552(bX7XC)). To determine whether disclosure of a person's private information is
unwarranted, Exemption 7(C) requires the Court to balance the privacy interest in keeping the
records confidential against the public's interest in disclosure. Id. at762; see also Nat'l Archives

& Records Admin. v. Favish,

541 U.S. 157,172 (2004).

In Reporters Committee, the plaintiff

requested the criminal record

of a

specific

individual, alleged organized crime figure Charles Medico. 489 U.S. at 757.In Favish, the
plaintiff requested disclosure of pictures taken during the investigation of the death of Vincent
Foster, Jr., the deputy counsel to President Clinton, and Mr. Foster's family objected to the
request. 541 U.S. at 166.ln both cases the Supreme Court allowed the defendant agencies to use

Exemption 7(C), holding that the requested information amounted to an unwarranted invasion
into the personal privacy of Mr. Medico and the Foster family, respectively.

This case is substantially different than Reporters Committee and Favish because the
subjects of the Exemption Worksheets have not been identified and no private party is objecting

to the release of any personal information. The Exemption Worksheets identify the applicant by
either "Applicant" or initials; no names are provided. The "Facts of the Case" on the Exemption
Worksheets are similar-the majority of applicants were forced by threats and acts of violence to

provide some form of support to Tier

III organizations-making it hard to discern

one applicant

from the other using only the description of their association with an unnamed Tier III
organization. Disclosure

of the applicant's date of birth and nationality would result in

the

assembly of mere statistics. It is unlikely that an applicant could be identified based on these two
data sets and the short description of their involvement with an unnamed Tier

III organization.

As justification for redacting the applicants' date of birth and nationality, Defendants rely

on 8 C.F.R. $ 208.6, which generally prohibits public disclosure of an asylum claimant's
information to a third-party. Defendants also submit a question and answer "Fact Sheet"
produced by USCIS in2012, which states, inter alia, that disclosure of private information would

result in "retaliatory measures by government authorities or non-state actors in the event that the
claimant is repatriated, or endanger the security of the claimant's family members who may still
be residing in the country of origin." Defs.' Combined Reply and Opp to Pl.'s Cross-Motion, Ex.

1 at 1. The Court notes that both Plaintiff and Defendants share in the common goal of
safeguarding asylum seekers and refugees. However, the statement

in this "Fact Sheet" is

without reference to a specific case, a detailed report, or any factual support. It appears to be
generalized speculation. Moreover, the agency affidavits do not address Exemption 7(C) and are

void of any justification that the applicants' date of birth and nationality are logically within the
domain of the exemption claimed. Without a link or connection to an individual person, the
privacy concerns in this case are low to nil.
10

Plaintiff does not request the applicants' names;

it

only wants age and nationality

information for a statistical review on the treatment of minors and to discern any "disparate
impact" on applicants based on their national origin. Plaintiff s request follows the spirit of the
FOIA, which is "to ensure an informed citizenry, vital to the functioning of a democratic society,
needed to check against corruption and to hold the governors accountable to the governed." John

Doe Agency, 493 U.S. at 152 (internal quotation omitted); see also Favish, 541 U.S. at

l7l

(quoting Reporters Comm., 489 U.S. at773) ("FOIA is often explained as a means for citizens to

know 'what their Government is up to."'). When balancing the competing interests in privacy
and disclosure, the Court finds that redacting the date of birth and nationality of the applicants is

not logically within Exemption 7(C).

IIl.

Conclusion

Defendants have submitted evidence to justifu that the names of Tier

III organizations

are

"guidelines" as defined by 5 U.S.C. $ 552(b)(7)(C), disclosure of which could reasonably lead to
circumvention of the law. Therefore, Defendants' motion for summary judgment is granted. On

Plaintiff s cross-motion, the Court finds that Defendants' disclosure of the applicants' date of

binh and country of origin will not amount to an unwarranted invasion of personal privacy.
Therefore, Defendants' use

of 5

U.S.C. A 552(bX7XC)

to

redact this information

permissible and Plaintiff s cross-motion for summary judgment is granted.

IT IS SO ORDERED.

CHARLES RONALD NORGLE
United States District Court

DATE: February 17,2016

11

is

not