Allen v. US Homeland of Security

Filing 35

ORDER AND OPINION. DHS has met its burden of demonstrating that the document in question was properly withheld. Summary judgment is granted with respect to the witness statement (in addition to the documents as to which Plaintiff abandoned his object ions), and thus granted in full. The Clerk of Court is instructed to terminate Docket Entry 26 and close the case. SO ORDERED. re: 26 MOTION for Summary Judgment filed by U.S. Department of Homeland Security. (Signed by Judge Valerie E. Caproni on 1/17/2018) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ALLEN E. KAYE,
:
:
Plaintiff,
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:
-against:
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U.S. DEPARTMENT OF HOMELAND
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SECURITY,
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:
Defendant. X
-------------------------------------------------------------VALERIE CAPRONI, United States District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 1/17/18

16-CV-9384 (VEC)
ORDER AND OPINION

On May 19, 2017, Defendant U.S. Department of Homeland Security (“DHS”) moved for
summary judgment in this Freedom of Information Act (“FOIA”) matter, supported by a
memorandum of law (“DHS Mem.”) [Dkt. 28] and a declaration from Brian J. Welsh, Deputy
Chief of the Freedom of Information Act Program Branch at the National Records Center
(“NRC”) for United States Citizenship and Immigration Services (“USCIS”), an agency within
DHS (“Welsh Decl.”) [Dkt. 27]. Plaintiff Allen E. Kaye (“Plaintiff”) challenges USCIS’s
response to his FOIA request for immigration documents pertaining to his client, Jaswinder Pal
Singh (“Singh”). Govt. Mem. at 1;1 Complaint (“Compl.”) [Dkt. 1].
Kaye’s FOIA request was initially filed on October 6, 2015, prompting a document
search that ultimately resulted in the production of 87 pages in full and 17 pages in part, with
only two pages withheld in their entirety. Welsh Decl. ¶¶ 6–13; DHS Mem. at 1. Although DHS
initially presented the grounds on which it had withheld all of the unreleased materials, see, e.g.,
Welsh Decl. ¶¶ 24–54, Plaintiff has made it clear that he is challenging only the decision to
withhold a single document, a witness statement, which he asserts was made by Singh’s former

1

DHS’s memorandum of law is not paginated; the Court deems the page containing the “Preliminary
Statement” to be page 1, the next page beginning with “Background” to be page 2, and so forth.

wife. Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment
(“Opp. Mem.”) [Dkt. 30] at 1. Accordingly, as an initial matter, the Court finds that Plaintiff has
waived any objections to the adequacy of the search and to DHS’s decision to withhold the other
documents; DHS’s motion is granted as to those documents.2
A plaintiff’s challenge to a government agency’s FOIA response is usually resolved on a
motion for summary judgment. Det. Watch Network v. United States Immigration & Customs
Enf’t, 215 F. Supp. 3d 256, 261 (S.D.N.Y. 2016) (citing Carney v. Dep’t of Justice, 19 F.3d 807,
812 (2d Cir. 1994)). The agency must show that the withheld documents fall within a FOIA
exemption. The agency may do so by affidavit or declaration that provides a reasonably detailed
explanation for why the material was withheld; the Court reviews the bases for withholding
material de novo. Id. (citations omitted).
DHS has set forth several FOIA exemptions as the bases for withholding the witness
statement—(6), (7)(C), (7)(D), (7)(E), and (7)(F)—but focuses its arguments in its reply brief on
(7)(C), (7)(D), and (7)(F), specifically protection of personal information, and affording
protection to and maintaining the confidentiality of the witness. 3 See DHS Mem. at 3–4; Reply
Memorandum of Law In Support of Defendant’s Motion for Summary Judgment (“Reply
Mem.”) [Dkt. 34] at 1–10. Plaintiff, who assumes that the witness whose statement is being

2
See, e.g., Duarte v. St. Barnabas Hosp., 265 F. Supp. 3d 325, 352–53 (S.D.N.Y. 2017) (“Federal courts
may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing
summary judgment fails to address the argument in any way.”) (collecting cases) (citations omitted).
3

Documents of the following types are exempt from disclosure under FOIA: “(6) personnel and medical
files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
[and] (7) records or information compiled for law enforcement purposes, but only to the extent that the production
of such law enforcement records or information . . . (C) could reasonably be expected to constitute an unwarranted
invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source . . . ,
(E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose
guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk
circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any
individual . . . .” 5 U.S.C. § 552(b).

2

withheld was Singh’s former wife, asserts, without support or an affidavit, that the witness’s
privacy interest has effectively been waived because he has guessed the witness’s identity and
because his former wife told Singh that she had made a statement to the immigration authorities.
Further, he argues, that the former wife needs no protection because Mr. Singh has not
threatened or harassed her since she was interviewed by the immigration authorities. See Opp.
Mem. at 8–18. He asserts a public interest in the fair administration of immigration laws,
namely how DHS applies § 204(c) of the Immigration Nationality Act, which bars future visa
petitions for permanent residence if an individual has previously engaged in marriage fraud.4
See, e.g., id. at 13, 18.
The Court finds that Plaintiff’s arguments are unavailing, and that DHS has sufficiently
justified withholding the document. The Court agrees with DHS that, as to exemption (7)(C),
even if Plaintiff has correctly guessed the identity of the witness, because the witness has not
waived his or her privacy interest, the witness’s right to privacy must still be respected. See
Reply Mem. at 2–6. As to (7)(D), the Court agrees with DHS that production of the witness
statement would reveal the identity of a confidential source, as it is reasonable that the witness
would have expected his or her identity to remain confidential, and a policy of confidentiality
promotes cooperation with law enforcement and protects witnesses. Id. at 8–10. And as to
(7)(F), the Court agrees with DHS that revealing the identity of a witness who testified against an
individual regarding immigration fraud should remain private to afford protection to the witness;
the Court defers to the agency’s assessment of the risk and recognizes the possibility of
retaliation, regardless of Singh’s purported relationship with his former wife, who may or not
actually be the witness. Id. at 6–8. The Court rejects the purported public interest in knowing

4

See 8 U.S.C. § 1154(c).

3

how DHS makes its immigration determinations, as this does not outweigh the witness’s privacy
interest, the interest in maintaining confidentiality, and the interest in ensuring witness
protection.5
In short, DHS has met its burden of demonstrating that the document in question was
properly withheld. Summary judgment is granted with respect to the witness statement (in
addition to the documents as to which Plaintiff abandoned his objections), and thus granted in
full. The Clerk of Court is instructed to terminate Docket Entry 26 and close the case.

SO ORDERED.
_________________________________
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________________
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VALERIE CAPRONI
O
CAPRONI
United States District Judge

Date: January 17, 2018
New York, New York

5
The Court notes that there is a fine line between providing the public information about how immigration
authorities make their immigration determinations and providing the public information that would unacceptably
increase their ability to take steps to circumvent the law. In this case, the agency’s invocation of FOIA exemption
7(E) suggests its judgment that disclosing the document in question creates the latter risk.

4