Pitman et al v. United States Citizenship and Immigration Services (USCIS) et al
Filing
83
MEMORANDUM DECISION AND ORDERgranting in part and denying in part 70 Motion to Compel Completion of the Administrative Record. The USCIS Defendants are ORDERED to produce to the Pitman Plaintiffs the documents required under this Order within fourteen (14) days. Signed by Magistrate Judge Evelyn J. Furse on 12/21/18. (jmr)
IN THE UNTED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
TYLER PITMAN, et al.,
MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’
MOTION TO COMPEL COMPLETION
OF THE ADMINISTRATIVE RECORD
(ECF NO. 70)
Plaintiffs,
v.
UNITED STATES CITIZENSHIP
IMMIGRATION SERVICES, et al.,
AND
Case No. 2:17-cv-00166-CW-EJF
Defendants.
Judge Clark Waddoups
Magistrate Judge Evelyn J. Furse
Tyler Pitman and Liliana Damaschin’s (“Pitman Plaintiffs”) move to compel
completion of the administrative record. (Pls.’ Mot. to Compel Completion of the Admin.
R. & Mem. of Law (“Mot.”), ECF No. 70.) The Pitman Plaintiffs ask the Court to order
Defendants United States Citizenship and Immigration Services and the other
governmental agencies and officials sued (“USCIS Defendants”) “to immediately
produce” the documents the USCIS Defendants withheld from production on privilege
grounds “or have an in camera review to determine the validity of the privileges
claimed.” (Id. at 10.)
The USCIS Defendants opposed the Motion, arguing that the deliberative
process and law enforcement privileges protect the documents from disclosure. (Defs.’
Opp’n to Mot. to Compel (“Opp’n”), ECF No. 77.) To support and explain their privilege
claims, the USCIS Defendants attached to their Opposition the Declaration of Laura K.
McNeer, the Field Office Director of the Salt Lake City Field Office of the Department of
Homeland Security and U.S. Citizenship and Immigration Services. (Decl. of Laura K.
McNeer (“McNeer Decl.”), ECF No. 77-1.)
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The Court held a hearing on the Pitman Plaintiffs’ Motion to Compel. (ECF No.
80.) At the conclusion of the hearing, the Court ordered the USCIS Defendants to
produce for an in camera review the forty-seven pages of documents (comprising fifteen
separate documents) withheld from production on privilege grounds. The USCIS
Defendants submitted the documents, bearing Bates labels DEF-000001 to DEF000047, to the Court. Having reviewed the documents in camera and considered the
parties briefing and argument, the Court GRANTS IN PART and DENIES IN PART the
USCIS Defendants’ Motion to Compel.
PRIVILEGE ASSERTIONS
The USCIS Defendants assert that the deliberative process and/or law
enforcement privileges protect the fifteen documents they withheld from production. (Ex.
1 to Mot., Defs.’ Privilege Log (“Priv. Log”), ECF No. 70 at 13–20.) The USCIS
Defendants also claim that certain of the documents “contain personally identifiable
information of third parties (such as names and dates of birth) which are protected from
disclosure under general privacy principles.” (Opp’n 10, ECF No. 77.)
“[T]he deliberative process privilege . . . shields ‘documents reflecting advisory
opinions, recommendations and deliberations compromising part of a process by which
governmental decisions and policies are formulated.’” Trentadue v. Integrity Comm.,
501 F.3d 1215, 1226 (10th Cir. 2007) (quoting Dep't of the Interior v. Klamath Water
Users Protective Ass’n, 532 U.S. 1, 8 (2001)). The “privilege is primarily designed to
‘enhance the quality of agency decisions by protecting open and frank discussion
among those who make them within the Government.’” Id. (quoting Klamath, 532 U.S.
at 8-9). The privilege also “prevent[s] the premature disclosure of proposed policies,
2
and avoids ‘misleading the public by dissemination of documents suggesting reasons
and rationales for a course of action which were not in fact the ultimate reasons for the
agency's action.’” Id. (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d
854, 866 (D.C. Cir. 1980)).
The privilege protects only those documents that qualify as “both predecisional
and deliberative.” Trentadue, 501 F.3d at 1227. Documents “‘prepared in order to
assist an agency decisionmaker in arriving at his decision’” constitute predecisional
documents. Id. (quoting Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S.
168, 184 (1975)). Documents qualify as deliberative if they “reflect[] the give-and-take
of the consultative process.” Coastal States Gas Corp., 617 F.2d at 866. “Non-factual
materials that express opinions or recommendations” fall into the deliberative category.
Trentadue, 501 F.3d at 1227. Factual materials can qualify as deliberative if “they are
inextricably intertwined with deliberative materials, [] or [] their disclosure would reveal
deliberative material.” Id. at 1229. However, the Tenth Circuit explicitly prohibited the
withholding of “factual material simply because it reflects a choice as to which facts to
include in a document.” Id. The privilege protects “recommendations, draft documents,
proposals, suggestions, and other subjective documents which reflect the personal
opinions of the writer rather than the policy of the agency.” Coastal States Gas Corp.,
617 F.2d at 866.
Even if the deliberative process privilege applies, the party seeking disclosure
can overcome the privilege by showing a need for the discovery. In re Sealed Case,
121 F.3d 729, 737 (D.C. Cir. 1997). In making such a determination, the court
considers relevance, availability, importance of the litigation, the government’s role, and
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the potential chilling effect on governmental deliberations, among other factors that may
arise ad hoc. Id.
“The law enforcement investigative privilege is ‘based primarily on the harm to
law enforcement efforts which might arise from public disclosure of . . . investigatory
files’ . . . and bars disclosure of facts.” United States v. Winner, 641 F.2d 825, 831
(10th Cir. 1981) (quoting Black v. Sheraton Corp., 564 F.2d 531, 541(D.C. Cir. 1977)).
The privilege “‘prevent[s] disclosure of law enforcement techniques and procedures, to
preserve the confidentiality of sources, to protect witness and law enforcement
personnel, to safeguard the privacy of individuals involved in an investigation, and
otherwise to prevent interference with an investigation.’” Nat'l Union Fire Ins. Co. v.
F.D.I.C., No. CIV. A. 93-2471-GTV, 1995 WL 104835, at *1 (D. Kan. Mar. 7, 1995)
(unpublished) (quoting United States v. Myerson (In re Dep't of Investigation), 856 F.2d
481, 484 (2d Cir. 1988)). “The privilege applies to protect information relating to
completed investigations as well as ongoing ones, as ‘the ability of a law enforcement
agency to conduct future investigations may be seriously impaired if certain information’
from a completed investigation is revealed.” Mohammed v. Holder, No. 07-CV-02697MSK-BNB, 2014 WL 1042309, at *4 (D. Colo. Mar. 18, 2014) (unpublished) (quoting In
re City of New York, 607 F.3d 923, 944 (2d Cir. 2010)).
To assert the privilege, “the responsible official in the department must lodge a
formal claim of privilege, after actual personal consideration, specifying with particularity
the information for which protection is sought, and explain why the information falls
within the scope of the privilege.” Winner, 641 F.2d at 831. “‘The party claiming the
privilege has the burden of establishing these elements.’” Nat'l Union Fire, 1995 WL
4
104835, at *1 (quoting In re United Telecommunications, Inc. Sec. Litig., 799 F. Supp.
1206, 1208 (D.D.C. 1992)). A party can overcome the law enforcement privilege by “a
showing that the requesting party's need for the information outweighs the law
enforcement agency's need for secrecy.” Mohammed, 2014 WL 1042309, at *4 (citing
In re Dept. of Homeland Sec., 459 F.3d 565, 569–70 (5th Cir. 2006)).
DISCUSSION
1. Document No. 1: Summary of Findings (DEF-000001 to DEF-000003)
The USCIS Defendants assert that both the deliberative process and law
enforcement privileges protect the August 12, 2014 document entitled “Summary of
Findings.” (Privilege Log, ECF No. 70 at 13 (Doc. #1).) As to this document, Ms.
McNeer states the following in her Declaration:
A Summary of Findings ("SOF"), drafted by a USCIS Immigration Officer, is
the method of communicating the result of an administrative or criminal
investigation by the USCIS Fraud Detection and National Security (“FDNS”)
officer to USCIS adjudicators. The SOF contains factual information and
opinions that may be used by adjudicators to make an informed decision
regarding a case, and includes any record of suspected fraud or other
grounds of inadmissibility or removability that may have been identified. As
the SOF is a means of documenting internal agency deliberation and
consideration of the case and of communicating nonfinal recommendations
to the ultimate adjudicator of the case, the SOF constitutes a predecisional,
deliberative document and does not constitute a final decision on the merits
of a particular petition or application.
(McNeer Decl., ¶ 11(a), ECF No. 77-1.) Ms. McNeer also states the USCIS Immigration
Officer compiled the document “prior to rendering a decision on the I-130” and USCIS
personnel used the document “to ultimately come to a decision on how to adjudicate the
I-130 petition after consultation and deliberation within the agency.” (Id., ¶ 12.) USCIS
denied the Pitman Plaintiffs’ first I-130 Petition for Alien Relative on November 27, 2012,
5
and denied the second I-130 Petition for Alien Relative on April 5, 2015. (Compl. for
Declaratory & Injunctive Relief, ¶¶ 46, 51, ECF No. 1.)
The Court finds the deliberative process privilege protects portions of this
document from disclosure. Ms. McNeer’s Declaration establishes that portions of the
document qualify as both predecisional and deliberative, and the Court’s in camera
review confirms this assertion. An FDNS officer prepared the document, containing
factual information, opinions, and recommendations to help the ultimate adjudicator
arrive at a decision with respect to the Pitman Plaintiffs’ second I-130 Petition for Alien
Relative.
While some courts have found that the deliberative process privilege protects the
entirety of such documents, those courts relied on a theory specifically rejected by the
Tenth Circuit. For example, in United States v. Malik, No. 15-CV-9092-CM-TJJ, 2016
WL 3167307, at *6 (D. Kan. June 7, 2016) (unpublished), the court found that “[t]he
Government has met its burden to show the Statement of Findings [prepared by FDNS]
in its entirety is pre-decisional and part of USCIS's deliberative process for determining
whether to institute denaturalization proceedings against [defendant]” and is therefore
“protected in its entirety by the deliberative process privilege.” The court allowed the
government to withhold the Summary of Findings, including factual information,
because “the factual information that was specifically selected for inclusion by the FDNS
investigator reflects the investigator’s impressions and evaluations of the underlying
facts, was assembled in the exercise of the investigator’s judgment, and serves as the
basis for his recommendation to DHS legal counsel.” Id. at 5. The New York district
court in Assadi v. U.S. Citizenship & Immigration Servs., No. 12 CIV. 1374 RLE, 2013
6
WL 230126, at *4-5 (S.D.N.Y. Jan. 22, 2013) (unpublished) made a similar
determination, finding that the factual information in a Summary of Findings reflects
deliberative information because it shows which factual information the drafter selected.
However, the Tenth Circuit expressly rejects this basis for withholding factual
information: “To the extent that [the D.C. Circuit] allows an agency to withhold factual
material simply because it reflects a choice as to which facts to include in a document,
we reject that approach.” Trentadue, 501 F.3d at 1229.
This Court finds the document largely evaluative. However, the USCIS
Defendants must produce a redacted version of the document revealing the factual
portions: the first page through the second page ending after the “Summary” section
and then section IV.A. on the second page. In this particular Summary of Findings,
these portions of the document recite facts that are not inextricably intertwined with the
deliberative portions of the document. The remainder of the document includes the
officer’s evaluations and conclusions and some facts that remain inextricably intertwined
with those evaluations and conclusions. The USCIS Defendants may redact those
portions.
The Court finds that the law enforcement privilege extends to portions of the
document as well. Ms. McNeer’s Declaration states that the document “reflect[s] USCIS
investigatory techniques and findings” which “reveal procedures used by USCIS to
investigate and adjudicate fraudulent immigration benefit applications and would impair
the effectiveness of USCIS processes to determine eligibility for the immigration benefit
sought.” (McNeer Decl., ¶ 18, ECF No. 77-1.) She further states that “[d]isclosure of
the withheld document[] would undermine the integrity of the U.S. immigration system
7
and could facilitate immigration fraud” and that “[d]isclosure could further provide
immigration benefit applicants with information to evade USCIS processes and
procedures used to investigate benefit eligibility, or to conceal information relevant to
eligibility for those benefits, thereby limiting the Department of Homeland Security's
ability to enforce immigration laws.” (Id.) A portion of the document refers to certain
system checks USCIS utilizes and reveals specific procedures used. The Court finds
this information as collected in this document and used in this document could provide
information on how to circumvent the law. The Court allows the USCIS Defendants to
redact this information.
The Pitman Plaintiffs also ask the Court to find the USCIS Defendants have
failed to put forth sufficient evidence to show why the Pitman Plaintiffs do not need the
withheld documents. (Mot. 4, ECF No. 70.) While the Court understands the difficulty
in identifying the significance of information one does not have, the Pitman Plaintiffs
failed to give the Court any reason why if the deliberative process privilege and/or law
enforcement privilege applies it should be overcome in this case. The USCIS
Defendants, on the other hand, argue that disclosure of this predecisional, deliberative
document will chill internal communications and result in less thorough decision making
and impair law enforcement investigations. (Opp’n 7 & 8, ECF No. 77.) The Court finds
no basis to overcome the deliberative process privilege or the law enforcement privilege
as to the document.
In addition, the USCIS Defendants assert the document contains Third Party
Personal Identifying Information. (Priv. Log, ECF No. 70 at 13 (Doc. #1).) The
document contains personal identifiable information, and as such, the USCIS
8
Defendants should designate the document “Confidential” under the Standard
Protective Order entered in this case. See DUCivR 26-2(a). This designation and
consequent restrictions meet the need for privacy, particularly given the personal
identifiable information in this document belongs to the Pitman Plaintiffs. Further, while
the Court orders the USCIS Defendants to produce certain portions of this document, it
notes that it appears to contain internal record numbers on the first page. The USCIS
Defendants may redact that information from the document.
Accordingly, the Court GRANTS IN PART the Pitman Plaintiffs’ request to
compel the production of this document. The Court ORDERS the USCIS Defendants to
produce the factual portions of the document as outlined above, but allows the USCIS
Defendants to redact the deliberative and law enforcement portions of it as described
above. The USCIS Defendants may also redact any internal record numbers from the
document and should also designate the document as “Confidential.”
2. Document No. 2: TECS Resolution Memorandum for Absconders (DEF000004)
The USCIS Defendants assert that both the deliberative process and law
enforcement privileges protect the April 7, 2014 document entitled “TECS Resolution
Memorandum for Absconders.” (Privilege Log, ECF No. 70 at 13 (Doc. #2).) As to this
document, Ms. McNeer states the following in her Declaration:
This document is a predecisional memorandum prepared by a supervisor
at the Nebraska Service Center prepared upon referral of the petition to the
USCIS field office. The memorandum contains factual information and
recommendations relating to the adjudication of the I-130 petition in this
case. The memorandum also contains information relating to law
enforcement history and investigation relating to Plaintiff Damaschin. As
this memorandum reflects factual consideration and recommendations by a
USCIS officer prior to an adjudicative decision on the case, the document
is deliberative.
9
(McNeer Decl., ¶ 11(b), ECF No. 77-1.) Ms. McNeer also states that the document was
“compiled prior to rendering a decision on the I-130” and “used by . . . USCIS personnel
to ultimately come to a decision on how to adjudicate the I-130 petition after
consultation and deliberation within the agency.” (Id., ¶ 12.)
The Court finds the deliberative process privilege protects this document from
disclosure. Ms. McNeer’s Declaration establishes that the document qualifies as both
predecisional and deliberative, and the Court’s in camera review confirms this assertion.
The document contains information and recommendations concerning the Pitman
Plaintiffs’ second I-130 Petition, made by a supervisor at the Nebraska Service Center,
and prepared prior to the USCIS’s final decision on the Petition in April 2015. Further,
the Court finds that the document is largely evaluative and that the factual portions of
the document are inextricably intertwined with the officer’s evaluations and conclusions.
The law enforcement privilege also protects this document because it reveals
various government systems checked in connection with the I-130 Petition and the
results of those checks. Ms. McNeer’s Declaration states that the document “contain[s]
summaries of continuing law enforcement investigations and techniques“ which “reveal
procedures used by USCIS to investigate and adjudicate fraudulent immigration benefit
applications and would impair the effectiveness of USCIS processes to determine
eligibility for the immigration benefit sought.” (McNeer Decl., ¶ 18, ECF No. 77-1.) She
further states that “[d]isclosure of the withheld document[] would undermine the integrity
of the U.S. immigration system and could facilitate immigration fraud” and that
“[d]isclosure could further provide immigration benefit applicants with information to
evade USCIS processes and procedures used to investigate benefit eligibility, or to
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conceal information relevant to eligibility for those benefits, thereby limiting the
Department of Homeland Security's ability to enforce immigration laws.” (Id.) In
addition, she claims that the document “contain[s] law enforcement identification
information originating from external intelligence and law enforcement sources” and that
“[d]isclosure could harm the collaborative relationship between USCIS and the law
enforcement partners, which could degrade USCIS's ability to collect information it
needs to prevent fraud from infiltrating the immigration system.” (Id., ¶ 19.) Finally, she
asserts that disclosure of this document “could reveal USCIS's internal procedures and
systems checks for vetting fraud cases, and would provide immigration benefit
applicants with an incentive to falsify or misrepresent information to USCIS,” which
“would obstruct enforcement, implementation, and application of the law that was
enacted to bar certain applicants from eligibility for benefits, and bar the admission of
certain aliens into the United States . . . .” (Id., ¶ 20.)
In different but similar contexts, courts have found such information protected
from disclosure because it reveals techniques used to determine eligibility for
immigration benefits that applicants could use to circumvent the law. See, e.g.,
Mezerhane de Schnapp v. United States Citizenship & Immigration Servs., 67 F. Supp.
3d 95, 101 (D.D.C. 2014) (finding disclosure of certain documents “could create the
chance of a risk of circumvention of the law” because they reveal “what sort of law
enforcement information (from which databases) is consulted by USCIS during
adjudication of a pending [] application—and, of course, by logical inference, what sort
of information is not consulted.” (internal quotations omitted)). Because this document
reveals detailed internal procedures and system checks that USCIS uses to vet fraud
11
cases, the Court finds the document protected from disclosure by the law enforcement
privilege.
The Pitman Plaintiffs further ask the Court to find the USCIS Defendants have
failed to put forth sufficient evidence to show why the Pitman Plaintiffs do not need the
withheld documents. (Mot. 4, ECF No. 70.) The Pitman Plaintiffs failed to give the
Court any reason why if the deliberative process privilege and/or law enforcement
privilege applies it should be overcome in this case. The USCIS Defendants argue that
disclosure of this predecisional, deliberative document will chill internal communications
and result in less thorough decision making and impair law enforcement investigations.
(Opp’n 7 & 8, ECF No. 77.) The Court finds no basis to overcome the deliberative
process privilege or the law enforcement privilege as to this document.
Accordingly, the Court DENIES the Pitman Plaintiffs’ request to compel the
production of this document.
3. Document Nos. 3, 7, & 10: IBIS Resolution Memoranda (DEF-000005, DEF000010, DEF-000013)
The USCIS Defendants assert that the deliberative process and law enforcement
privileges protect Interagency Border Inspection System (“IBIS”) Hit Memoranda dated
October 24, 2012, February 14, 2012, and February 15, 2011. (Privilege Log, ECF No.
70 at 14, 16, & 17 (Doc. #3, 7, & 10).) As to the first document, Ms. McNeer states the
following in her Declaration:
This document is a pre-decisional memorandum to file prepared by an
Immigration Services Officer. The memorandum summarizes a history of
the case as of the date of the memorandum, and documents a
recommendation regarding any additional steps to be taken for further
consideration and adjudication of the case. The memorandum also
includes identification information pertaining to and compiled for law
enforcement investigatory techniques. As the document reflects a record
12
of the officer's consideration and impressions of the case history and
recommendations for further action, it is a deliberative document.
(McNeer Decl., ¶ 11(c), ECF No. 77-1.) She states the following with respect to the
second IBIS memorandum:
This document is a pre-decisional memorandum to file prepared by an
Immigration Services Officer. The memorandum documents the officer's
impressions regarding the case and a recommendation regarding
evaluation of the evidence in the case, for consideration by the interviewing
officer and the ultimate decision maker. The memorandum also includes
identification information pertaining to and compiled for law enforcement
investigatory techniques. As the document reflects a record of the officer's
consideration and impressions of the case history and recommendations for
further action, it is a deliberative document.
(McNeer Decl., ¶ 11(g), ECF No. 77-1.) And as to the third memorandum, Ms.
McNeer states:
This document is a predecisional, interoffice memorandum prepared by an
Immigration Services Officer prepared upon referral of the petition to the
USCIS field office adjudicator.
The memorandum contains factual
information and recommendations relating to the adjudication of the I-130
petition in this case. The memorandum also contains information relating
to law enforcement history and investigation relating to Plaintiff Damaschin.
As this memorandum reflects factual consideration and recommendations
by a USCIS officer prior to an adjudicative decision on the case, the
document is deliberative.
(McNeer Decl., ¶ 11(i), ECF No. 77-1.) Ms. McNeer also states that USCIS personnel
compiled the documents “prior to rendering a decision on the I-130” and used them “to
ultimately come to a decision on how to adjudicate the I-130 petition after consultation
and deliberation within the agency.” (Id., ¶ 12.)
The Court agrees with the USCIS Defendants that the deliberative process
privilege protects these documents from disclosure. Ms. McNeer’s Declaration
establishes the documents as both predecisional and deliberative, and the Court’s in
camera review confirms this assertion. The documents contain information and
13
recommendations from immigration officers regarding the Pitman Plaintiffs’ first I-130
Petition prepared prior to a final denial of the Petition in November 2012. Further, the
Court finds the documents largely evaluative and the factual portions inextricably
intertwined with the officers’ evaluations and conclusions.
Additionally, as with the TECS Memorandum, the Court finds that the law
enforcement privilege protects these documents because they reveal internal
procedures and system checks that USCIS uses to vet fraud cases. Ms. McNeer’s
declaration sets forth the same contentions regarding this document as with the TECS
Memorandum. (McNeer Decl., ¶¶ 18–20, ECF No. 77-1.) In similar contexts, courts
have found IBIS inquiry records properly withheld from disclosure given that the
contents may reveal information that would allow applicants to circumvent immigration
laws. See, e.g., Bayala v. United States Dep't of Homeland Sec., 264 F. Supp. 3d 165,
179–80 (D.D.C. 2017) (finding the government properly withheld IBIS inquiry records
because it “has sufficiently shown a reasonably expected risk that releasing the withheld
records would lead to circumvention of the law”).
As with the prior documents, the Pitman Plaintiffs ask the Court to find the USCIS
Defendants failed to put forth sufficient evidence to show why the Pitman Plaintiffs do
not need the withheld documents. (Mot. 4, ECF No. 70.) For the reasons stated
previously, the Court finds no basis to overcome the deliberative process privilege or
the law enforcement privilege as to these documents.
Accordingly, the Court DENIES the Pitman Plaintiffs’ request to compel the
production of these documents.
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4. Document No. 4: Memorandum to File (DEF-000006 to DEF-00007)
The USCIS Defendants assert that the deliberative process privilege protects a
March 9, 2012 Memorandum to File regarding the Pitman Plaintiffs’ first I-130 Petition.
(Privilege Log, ECF No. 70 at 15 (Doc. #4).) As to this document, Ms. McNeer states in
her Declaration:
This document is a pre-decisional memorandum to file prepared by the
interviewing officer upon completion of the I-130 interview and prior to a
decision on the case. The interviewing officer was not the ultimate
adjudicator in this case. The memorandum contains a summary of the facts
and testimony uncovered during the interview, as well as the officer's
impressions of the case and recommendations for additional action in the
case.
(McNeer Decl., ¶ 11(d), ECF No. 77-1.) Ms. McNeer also states that the document was
“compiled prior to rendering a decision on the I-130” and “used by . . . USCIS personnel
to ultimately come to a decision on how to adjudicate the I-130 petition after
consultation and deliberation within the agency.” (Id., ¶ 12.)
The Court agrees with the USCIS Defendants that the deliberative process
privilege protects this document from disclosure. Ms. McNeer’s Declaration establishes
that the document qualifies as both predecisional and deliberative, and the Court’s in
camera review confirms this assertion. The document contains the interviewing officer’s
summary of facts and testimony given during the I-130 interview conducted prior to a
determination on the Pitman Plaintiffs’ first I-130 Petition and that officer’s impressions
of the case. Ms. McNeer also represents that the interviewing officer did not serve as
the ultimate adjudicator in this case. Further, the Court finds any factual portions of the
document inextricably intertwined with the officer’s evaluations and conclusions.
15
The Pitman Plaintiffs also ask the Court to find the USCIS Defendants have
failed to put forth sufficient evidence to show why the Pitman Plaintiffs do not need the
withheld document. (Mot. 4, ECF No. 70.) The decisions made in this case came after
sworn, transcribed testimony given in hearings and the decision makers do not
reference this interview in their decisions. Under these circumstances the Court finds
no basis to overcome the deliberative process privilege as to this document.
Accordingly, the Court DENIES the Pitman Plaintiffs’ request to compel the
production of this document.
5. Document No. 5: Adjudicator Notes from 3/9/12 I-130 Interview (DEF000008)
The USCIS Defendants assert that the deliberative process privilege protects the
March 9, 2012 notes from the I-130 Petition interview. (Privilege Log, ECF No. 70 at 15
(Doc. #5).) As to this document, Ms. McNeer states in her Declaration:
This document constitutes handwritten notes prepared by the interviewing
officer during the 1-130 interview. The interviewing officer was not the final
adjudicator on this case, and officer notes do not reflect a final adjudicative
determination on the case. These notes reflect the officer's thoughts and
impressions of the testimony during the interview for consideration by the
decision maker.
(McNeer Decl., ¶ 11(e), ECF No. 77-1.) Ms. McNeer also states that the document was
“compiled prior to rendering a decision on the I-130,” and “used by . . . USCIS personnel
to ultimately come to a decision on how to adjudicate the I-130 petition after
consultation and deliberation within the agency.” (Id., ¶ 12.)
The Court finds the deliberative process privilege protects this document from
disclosure. Ms. McNeer’s Declaration establishes that the document qualifies as both
predecisional and deliberative, and the Court’s in camera review confirms this
16
conclusion. The document consists of the handwritten notes of the interviewing
officer—who was not the ultimate decision maker— and reflects the officer’s thoughts
and impressions concerning the testimony elicited during the I-130 interview. Further,
the Court finds any factual portions of the document inextricably intertwined with the
officer’s evaluations and conclusions.
The Pitman Plaintiffs also ask the Court to find the USCIS Defendants have
failed to put forth sufficient evidence to show why the Pitman Plaintiffs do not need the
withheld document. (Mot. 4, ECF No. 70.) The decision under review in this case came
after sworn, transcribed testimony given in hearings and the decision makers do not
reference this interview in their decisions. Under these circumstances the Court finds
no basis to overcome the deliberative process privilege as to this document.
Accordingly, the Court DENIES the Pitman Plaintiffs’ request to compel the
production of this document
6. Document Nos. 6 & 11: Central Index System – EOIR Data Display (DEF000009) & System Record Display (DEF-000014)
The USCIS Defendants assert that the deliberative process and law enforcement
privileges protect two data display documents—one a March 8, 2012 Executive Office
for Immigration Review (“EOIR”) data display with handwritten notes and the other
described as “System Record Display” dated February 15, 2011. (Privilege Log, ECF
No. 70 at 16, 18 (Doc. # 6 & 11).) As to the first document with handwritten notes, Ms.
McNeer states the following in her Declaration:
This document is a data system display document containing handwritten
notes by a USCIS employee. The notes reflect the employee's thought
process and perceptions concerning certain facts in the case and ideas
informing the basis for the individual's recommendation in the case. The
document also contains sensitive law-enforcement and cybersecurity
17
information. As the document includes pre-decisional and deliberative
notes, disclosure of the document would harm agency decision-making by
limiting open discussion and consideration on each case.
(McNeer Decl., ¶ 11(f), ECF No. 77-1.) Ms. McNeer also states that the document was
“compiled prior to rendering a decision on the I-130,” and “used by . . . USCIS personnel
to ultimately come to a decision on how to adjudicate the I-130 petition after
consultation and deliberation within the agency.” (Id., ¶ 12.) Contrary to the privilege
log, Ms. McNeer does not claim in her Declaration that the deliberative process privilege
protects the other system display, Doc. #11.
The Court agrees with the USCIS Defendants that the deliberative process
privilege protects the handwritten notes on the EOIR printout. Ms. McNeer’s
Declaration establishes that the notes qualify as both predecisional and deliberative,
and the Court’s in camera review confirms this assertion. The notes reflect a USCIS
employee’s thought processes and perceptions regarding the case, written prior to a
decision on the Pitman Plaintiffs’ first I-130 Petition, and do not constitute a final agency
decision. Further, the Court finds the factual portions of the notes inextricably
intertwined with the employee’s evaluations and conclusions.
As with the prior documents, the Pitman Plaintiffs ask the Court to find the USCIS
Defendants have failed to put forth sufficient evidence to show why the Pitman Plaintiffs
do not need the withheld documents. (Mot. 4, ECF No. 70.) For the reasons stated
previously, the Court finds no basis to overcome the deliberative process privilege as to
these notes.
Ms. McNeer’s Declaration does not assert, let alone establish that the
deliberative process privilege protects the other system display printout. Therefore, the
18
Court finds the privilege inapplicable to that document. The privilege also does not
attach to the EOIR printout, Doc. #6, apart from the handwritten notes.
The Court also declines to find the printed information in either display protected
by the law enforcement privilege. Ms. McNeer claims the documents “contain law
enforcement identification information originating from external intelligence and law
enforcement sources” and that “[d]isclosure could harm the collaborative relationship
between USCIS and the law enforcement partners, which could degrade USCIS’s ability
to collect information it needs to prevent fraud from infiltrating the immigration system.”
(McNeer Decl., ¶ 19, ECF No. 77-1.) Further, she asserts that disclosure of the
documents “could reveal USCIS's internal procedures and systems checks for vetting
fraud cases, and would provide immigration benefit applicants with an incentive to falsify
or misrepresent information to USCIS,” which “would obstruct enforcement,
implementation, and application of the law that was enacted to bar certain applicants
from eligibility for benefits, and bar the admission of certain aliens into the United States
. . . .” (Id., ¶ 20.)
The Court’s in camera review of these documents does not support Ms.
McNeer’s statements. The information contained in these system displays does not
reveal any internal procedures regarding USCIS’s vetting of fraud cases that an
applicant could potentially use to commit fraud; instead, the information contained in
system displays remains quite generic and specific to Ms. Damaschin. Further, the
USCIS Defendants have failed to show how the production of these documents could
harm interagency relationships, and Ms. McNeer does not provide any specifics in that
regard.
19
While the Court orders the USCIS Defendants to produce these system displays,
it notes that they appear to contain internal record numbers. The USCIS Defendants
may redact that information from the displays. In addition, the documents contain
personally identifiable information, and as such, the USCIS Defendants should
designate them as “Confidential” under the Standard Protective Order entered in this
case. See DUCivR 26-2(a). This designation and consequent restrictions meet the
need for privacy, particularly given the fact that the almost all of the personal identifiable
information in these documents belong to the Pitman Plaintiffs.
Accordingly, the Court GRANTS IN PART the Pitman Plaintiffs’ request to
compel the production of these documents. The Court ORDERS the USCIS
Defendants to produce copies of Document Nos. 6 and 11. The USCIS Defendants
may redact the handwritten notes from Document No. 6 and any internal record
numbers from the documents. They should also designate the documents as
“Confidential.”
7. Document No. 9: Memorandum to File (DEF-000012)
The USCIS Defendants assert the deliberative process privilege protects a
March 7, 2011 Memorandum to File regarding the I-130 application at issue in this case.
(Privilege Log, ECF No. 70 at 17 (Doc. #9).) As to this document, Ms. McNeer states in
her Declaration:
This document is a pre-decisional memorandum to file prepared by an
Immigration Services Officer. The memorandum reflects the officer's
consideration of the factual evidence and impressions regarding eligibility
for the benefit. The memorandum also contains internal recommendations
for further adjudication of the petition. As such, the document is
deliberative.
20
(McNeer Decl., ¶ 11(h), ECF No. 77-1.) Ms. McNeer also states that the document was
“compiled prior to rendering a decision on the I-130,” and “used by . . . USCIS personnel
to ultimately come to a decision on how to adjudicate the I-130 petition after
consultation and deliberation within the agency.” (Id., ¶ 12.)
The Court agrees with the USCIS Defendants that the deliberative process
privilege protects this document from disclosure. Ms. McNeer’s Declaration establishes
that the document qualifies as both predecisional and deliberative, and the Court’s in
camera review confirms this conclusion. The document contains an immigration
officer’s consideration of factual evidence, impressions, and recommendations
regarding the Pitman Plaintiffs’ first I-130 Petition, prior to a decision on the Petition, and
as such, does not constitute a final agency decision. Further, the Court finds any
factual portions of the document inextricably intertwined with the officer’s evaluations
and conclusions. As with the prior documents, the Pitman Plaintiffs ask the Court to find
the USCIS Defendants have failed to put forth sufficient evidence to show why the
Pitman Plaintiffs do not need the withheld document. (Mot. 4, ECF No. 70.) For the
reasons stated previously, the Court finds no basis to overcome the deliberative
process privilege as to this document.
Accordingly, the Court DENIES the Pitman Plaintiffs’ request to compel the
production of this document.
8. Document No. 12: Transfer Note to Supervisor (DEF-000015)
The USCIS Defendants assert the deliberative process privilege protects a
January 30, 2011 handwritten note relating to this case. (Privilege Log, ECF No. 70 at
19 (Doc. #12).) As to this document, Ms. McNeer states in her Declaration:
21
This document is a handwritten note written by an Immigration Officer to a
USCIS supervisor. The note reflects deliberative discussion regarding
adjudication of the petition in this case.
(McNeer Decl., ¶ 11(j), ECF No. 77-1.) Ms. McNeer also states that USCIS personnel
compiled the document “prior to rendering a decision on the I-130,” and used it “to
ultimately come to a decision on how to adjudicate the I-130 petition after consultation
and deliberation within the agency.” (Id., ¶ 12.)
The Court finds the deliberative process privilege protects this document from
disclosure. Ms. McNeer’s Declaration establishes that the document qualifies as both
predecisional and deliberative, and the Court’s in camera review confirms this assertion.
The document consists of a handwritten note reflecting a discussion concerning the
adjudication of the Pitman Plaintiffs’ first I-130 Petition. As with the prior documents, the
Pitman Plaintiffs ask the Court to find the USCIS Defendants have failed to put forth
sufficient evidence to show why the Pitman Plaintiffs do not need the withheld
document. (Mot. 4, ECF No. 70.) For the reasons stated previously, the Court finds no
basis to overcome the deliberative process privilege as to this note.
Accordingly, the Court DENIES the Pitman Plaintiffs’ request to compel the
production of this document.
9. Document Nos. 13 & 14: Email Correspondence (DEF-000016 to DEF000017, DEF-000018)
The USCIS Defendants assert that the deliberative process privilege protects the
September 2010 and January 2011 e-mail correspondence between USCIS officers and
ICE attorneys relating to the adjudication of the Pitman Plaintiffs’ first I-130 Petition.
(Privilege Log, ECF No. 70 at 19 (Doc. #13, 14).) As to these documents, Ms. McNeer
states in her Declaration:
22
Documents 13 and 14 reflect email communications between a USCIS
FDNS Immigration Officer and ICE Assistant Chief Counsels discussing
impressions of factual evidence and testimony uncovered in immigration
court and consideration of how that might impact USCIS's adjudication of
the I-130 petition. Each of these emails constitutes an interagency
consultation relating to the legal implications of the immigration court
testimony and the proposed grounds for adjudication of the Petitioner's
petition. As such, the emails are predecisional and deliberative in that they
were composed prior to the decision on the petition and reflect deliberation,
recommendations, and discussion relating to eligibility on the petition.
(McNeer Decl., ¶ 14, ECF No. 77-1.)
The Court finds the deliberative process privilege protects these documents from
disclosure. Ms. McNeer’s Declaration establishes both documents as predecisional and
deliberative, and the Court’s in camera review confirms this assertion. The e-mails
involve interagency communications regarding immigration court testimony and the
adjudication of the first I-130 Petition, written before USCIS Defendants’ decision on the
Petition, and as such, do not constitute a final agency decision. As with the prior
documents, the Pitman Plaintiffs ask the Court to find the USCIS Defendants have
failed to put forth sufficient evidence to show why the Pitman Plaintiffs do not need the
withheld documents. (Mot. 4, ECF No. 70.) For the reasons stated previously, the
Court finds no basis to overcome the deliberative process privilege as to these e-mails.
Accordingly, the Court DENIES the Pitman Plaintiffs’ request to compel the
production of these documents.
10. Document Nos. 8 & 15: CLEAR Printout (DEF-000011) and Accurint
Printouts (DEF-000019-DEF-000047)
The USCIS Defendants assert that the law enforcement privilege protects a July
2011 “CLEAR Printout” and the May 2010 “Accurint Printouts.” (Privilege Log, ECF No.
70 at 17, 19 (Doc. #8, 15).)
23
Ms. McNeer’s Declaration states that the documents “contain[] summaries of
continuing law enforcement investigations and techniques” which “reveal procedures
used by USCIS to investigate and adjudicate fraudulent immigration benefit applications
and would impair the effectiveness of USCIS processes to determine eligibility for the
immigration benefit sought.” (McNeer Decl., ¶ 18, ECF No. 77-1.) She further states
that “[d]isclosure of the withheld documents would undermine the integrity of the U.S.
immigration system and could facilitate immigration fraud,” and that “[d]isclosure could
further provide immigration benefit applicants with information to evade USCIS
processes and procedures used to investigate benefit eligibility, or to conceal
information relevant to eligibility for those benefits, thereby limiting the Department of
Homeland Security's ability to enforce immigration laws.” (Id.) Finally, she asserts that
disclosure of these documents “could reveal USCIS's internal procedures and systems
checks for vetting fraud cases, and would provide immigration benefit applicants with an
incentive to falsify or misrepresent information to USCIS,” which “would obstruct
enforcement, implementation, and application of the law that was enacted to bar certain
applicants from eligibility for benefits, and bar the admission of certain aliens into the
United States . . . .” (Id., ¶ 20.)
The Court finds, by its in camera review, that these documents do not support
Ms. McNeer’s statements. The databases used to generate these printouts belong to
third party, not governmental, entities. Thompson Reuters owns the CLEAR database,1
and LexisNexis owns the Accurint database.2 Moreover, other individuals and
1
https://legal.thomsonreuters.com/en/products/clear-investigation-software (last visited
Dec. 21, 2018)
2
https://www.lexisnexis.com/accurint/ (last visited Dec. 21, 2018)
24
organizations can use these databases for certain purposes. As such, the Court does
not see how the disclosure of these documents would facilitate immigration fraud or
reveal any internal processes or system checks used to vet immigration fraud, other
than in an extremely generic sense. See Mohammed, 2014 WL 1042309, at *4 (finding
that the law enforcement privilege did not apply where “[t]he documents disclose law
enforcement ‘techniques’ only in the most superficial and broad sense of the term . . .”).
Moreover, given the source of the documents, their production will not harm any
interagency relationships.
The USCIS Defendants also claim that these documents contain personally
identifiable information, which protects them from disclosure. (Privilege Log, ECF No.
70 at 17, 19 (Doc. #8, 15).) While the Court agrees that the documents contain
personally identifiable information, this information does not warrant blocking their
production entirely. Instead, the USCIS Defendants should mark the documents
“Confidential” pursuant to the Standard Protective Order in this Case.
Accordingly, the Court GRANTS the Pitman Plaintiffs’ request to compel the
production of these documents. The Court ORDERS the USCIS Defendants to produce
copies of Document Nos. 8 and 15. The USCIS Defendants should designate the
documents as “Confidential.”
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
the Pitman Plaintiffs’ Motion to Compel, as set forth above. The USCIS Defendants are
ORDERED to produce to the Pitman Plaintiffs the documents required under this Order
within fourteen (14) days.
25
DATED this 21 day of December, 2018.
BY THE COURT:
By: _________________________________
Magistrate Judge Evelyn J. Furse
United States District Court
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