TES v. Tillerson et al

Filing 36

ORDER denying Plaintiff's 28 Motion to Produce Entire Administrative Record signed by Judge Richard A. Jones. (TH)

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SOPHAT TES,
Plaintiff,

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Case No. 2:17-cv-00175-RAJ

v.

ORDER

UNITED STATES DEPARTMENT OF
STATE, et. al.,

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Defendants.

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I.

INTRODUCTION

This matter is before the Court on Plaintiff’s Motion to Produce Complete
Administrative Record. Dkt. # 28.

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II. BACKGROUND

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This is an APA action where Plaintiff challenges the U.S. Citizenship and

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Immigration Services’ (USCIS) decision to revoke Form I-130 Petitions filed on behalf of

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his purported wife and her two daughters. Dkt. # 14 at 2. Plaintiff claims that there is

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missing information from the produced administrative record, including notes that were

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relied upon in revoking the petitions. Dkt. # 28 at 5 (referencing “refusal notes”). In

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responding to the motion, Defendants attach a partially-redacted eleven-page document

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consisting of three State Department memoranda that were considered in adjudicating

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Plaintiff’s I-130 petitions. Dkt. # 33 at 9; Dkt. # 34-1. Defendants claim that this

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supplemental material completes the record. Dkt. # 33 at 12. Defendants also claim that

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ORDER – 1

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the motion should be stricken for failure to adhere to this Court’s meet-and-confer

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requirement. Id. at 7. Plaintiff did not file an reply brief in response to the motion.
III. DISCUSSION

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The administrative record “consists of all documents and materials directly or

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indirectly considered by agency decision-makers and includes evidence contrary to the

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agency’s position.” Thompson v. Dept. of Labor, 885 F.2d 551, 555 (9th Cir. 1989); see

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also Portland Audubon Soc’y v. Endangered Species Cmte., 984 F.2d 1534, 1548 (9th Cir.

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1993) (“When it appears the agency has relied on documents or materials not included in

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the record, supplementation is appropriate.”). A petitioner shall be permitted to inspect the

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record of a proceed which constitutes the basis for a decision, subject to certain exceptions.

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8 C.F.R. § 103.2. On the record before the Court, it appears that Defendants have made a

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supplemental disclosure encompassing Plaintiff’s request, subject to redactions made

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pursuant to the “law enforcement privilege.” Dkt. # 33 at 9-12; see also Dkt. # 35 (detailing

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documents that were not considered in the decision-making process and therefore not

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produced).

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enforcement privilege allows agencies to keep information related to law enforcement

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techniques and procedure from disclosure. See, e.g., Commonwealth of Puerto Rico v.

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United States, 490 F.3d 50, 64 (1st Cir. 2007) (recognizing a qualified privilege for law

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enforcement techniques and procedures); In re Dep’t of Investigation of the City of N.Y.,

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856 F.2d 481, 483–84 (2d Cir. 1988). Because Plaintiff does not challenge the assertion

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of the law enforcement privilege, the Court accepts Defendants’ explanation for the

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redactions and finds the parties’ issue resolved.

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Plaintiff’s motion as moot.

Although neither recognized nor rejected by the Ninth Circuit, the law

Accordingly, the Court DENIES

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As Defendants aver, this is the type of issue that could have easily been resolved

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without judicial intervention. Dkt. # 33 at 7. Both parties are hereby on notice that any

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subsequent motion that fails to comply with the meet and requirement will be stricken.

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ORDER – 2

IV. CONCLUSION

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For the reasons stated above, the Court DENIES Plaintiff’s motion as moot. Dkt.

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# 28.

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DATED this 20th day of May, 2019.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER – 3