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Advancement Project v. DHS, No. 19-52, 2022 WL 4094061 (D.D.C. Sept. 7, 2022) (Contreras, J.)


Advancement Project v. DHS, No. 19-52, 2022 WL 4094061 (D.D.C. Sept. 7, 2022) (Contreras, J.)

Re:  Request for records concerning series of visa sanctions

Disposition:  Granting in part and denying in part defendants’ motion for summary judgment

  • Exemption 5, Deliberative Process Privilege; Litigation Considerations, “Reasonably Segregable” Requirements; Litigation Considerations, In Camera Inspection:  Regarding ICE’s withholdings, “the Court concludes that ICE has now properly justified withholding information under Exemption 5.”  “The only remaining issue in [plaintiff’s] suit against ICE is whether ICE has sufficiently supplemented its earlier reasoning for certain withholdings under Exemption 5.”  “The Court is only reviewing two sets of ICE’s Exemption 5 claims in this Opinion.”  “The first set is comprised of two ‘documents that ICE describes as draft documents but whose file names include the word “final.”’”  “The second set is comprised of ‘a pair of briefing documents.’”

    First, the court relates that “ICE had initially provided no information to rebut the apparently final nature of the documents labelled ‘final.’”  “ICE has now claimed that these documents ‘died on the vine.’”  The court finds that “[w]hen recommendations have ‘died on the vine,’ then ‘“[c]ourts should be wary of interfering” with drafts that “do not ripen into agency decisions.”’”  “These documents are predecisional and deliberative.”  “Documents that reflect ideas that agencies ultimately decline to pursue are generally predecisional, because ‘documents discussing such dead-end ideas can hardly be described as reflecting the agency’s chosen course.’”  Regarding segregability, the court relates that “[plaintiff] claims, ‘ICE has withheld entire documents, not just the recommendation portions which it has identified that were never implemented.’”  The court finds that “[t]he document titles in the ICE Vaughn index . . . would appear to suggest that the documents are country-specific, making it easy to separate out the information that concerns the two countries omitted from the final announcement . . . .”  “This may well not be the case, but in the face of what appears to be contrary evidence, ICE must say more.”  “In order to assist the Court’s segregability analysis, ICE shall produce these documents for in camera review.”

    Second, the court relates that “[t]he second set of records consist of a pair of briefing documents, concerning, respectively, preparations for ICE’s Acting Director’s visit to the border, and ‘“internal talking points” on “a number of ICE initiatives” [that were] “part of a briefing book for the Secretary of Homeland Security's nomination.”’”  “Previously, ICE was not clear about how these documents had been ‘prepared in order to assist an agency decisionmaker in arriving at his decision . . . .’”  “Now, ICE has clarified that ‘the briefing materials inform[ed] the Acting Director’s judgment in the determination of the manner and prioritization of the issues to be presented,’ and ‘[t]hese decisions shape the agency’s policy.’”  “The materials were ‘pre-decisional, inasmuch as they preceded the Acting Director’s meetings with President Trump,’ and they were ‘deliberative because they reflect consultative processes and options discussed in the records [that] are selective in nature and which highlight ongoing actions and/or efforts that were deemed pertinent to assist with the Acting Director’s travel preparation and anticipated meeting preparation with former President Trump.’”  The court finds that “ICE has now shown that the documents were ‘prepared in order to assist an agency decisionmaker in arriving at his decision,’ . . . and so they are properly covered by Exemption 5.”  “Similarly, ICE has now provided sufficient explanation for the internal talking points.”  “‘[I]nternal talking points fall within the scope of the deliberative process privilege and FOIA Exemption 5.’”  “Initially, ICE claimed only that the ‘talking points [were] marked as “pre-decisional” and are being used as preparation as part of a briefing book for the Secretary of Homeland Security’s nomination.’”  “ICE has now clarified this connection [to an “‘exercise of agency policy-oriented judgment’”], explaining that the ‘draft talking points are also deliberative because they reveal the drafter’s opinions on important topics currently in ICE’s portfolio, to include ongoing operations and recalcitrant countries, and focus on presenting this information to the Secretary in order to respond to any potential questions that may arise during the nomination hearing.’”  “Thus, the internal talking points are also properly covered by Exemption 5.”  “ICE has also shown that it has adequately conducted a segregability analysis with respect to the second set of records.”  “[Plaintiff] has not disputed the adequacy of ICE's segregability analysis with regard to this set of records.”

    Regarding State’s withholdings, the court relates that “State ‘withheld a total of three sentences from two cables comprising an assessment of certain Guinean officials regarding repatriation and removal issues and are meant to provide candid and potentially sensitive analysis to inform the Department’s deliberations regarding next steps,’ and State also ‘withheld a parenthetical comment providing candid and potentially sensitive analysis to inform the Department’s next diplomatic steps regarding Cambodian officials.’”  The court finds that “State has properly withheld this information under Exemption 5 because it is both predecisional and deliberative.”  “Although Guinea and Cambodia were both on the sanctions press release, these documents are ‘pre-decisional and deliberative with respect to further engagement with the [respective governments] on repatriation and removal issues.’”  “The withheld information is predecisional because it ‘precede[d] – [was] predecisional to – the actual determination of how best both to define the scope and contours of the new policy,’ . . . namely, ‘further engagement with the [respective governments] on repatriation and removal issues’ . . . .”  “The withheld information is deliberative because it contained State’s ‘analyses informing next steps in the Department’s diplomatic efforts.’”  The court relates that “[plaintiff] argues that the documents are not deliberative because the relevant actions were mandated by law and did not allow discretion.”  “But [the court finds that plaintiff] misses the point.”  “[Plaintiff] argues State lacks discretion regarding whether or not to discontinue granting visas, but State’s withholdings do not relate to the granting of visas – rather, they relate to ‘next steps’ once the non-discretionary decision to discontinue visas was already made through the visa sanctions press release.”  The court finds that “State’s ‘analyses informing next steps in the Department’s diplomatic efforts,’ . . . are properly covered by Exemption 5.”
  • Exemption 7, Threshold & Exemption 7(E):  The court relates that “State withheld portions of five cables under Exemption 7(E).”  “The information concerned discontinuance of the issuance of certain visas.”  “The withheld material describes ‘specific law enforcement techniques and procedures used by the Department to process and adjudicate an alien’s eligibility for a visa.’”  “The omitted information ‘also reveal[s] which specific information is omitted or included in the “Consolidated Consular Database” (“CCD”)[,] . . . a non-public law enforcement database used to administer and enforce U.S. immigration laws and to prevent and track fraud.’”  First, the court finds that “the database information plainly serves a law enforcement purpose.”  “The database allows State ‘to administer and enforce U.S. immigration laws and to prevent and track fraud.’”  “Whether the State guidance on visa adjudication satisfies a law enforcement purpose, however, is a closer question.”  “The Court is not aware of a Circuit decision on this precise issue.”  “Nonetheless, the Court finds that the visa adjudication information in this case qualifies for a law enforcement purpose.”  “Here, State has explained that its guidance ‘serves the law enforcement purposes of adjudicating visas in accordance with the INA, as well as implementation of visa suspension measures taken in response to particular countries’ recalcitrance in accepting their nationals who are subject to final orders of removal from the United States.’”  The court finds that “the information here was ‘compiled to provide comprehensive guidance to employees in the field on how to apply and enforce the laws within the agency’s purview.’”  Second, the court relates that “[w]ith respect to the guidance, State asserts that the withheld information ‘comprises specific guidance to consular officers concerning the internal processing and adjudication of visa applications.’”  “Their very nature – as guidelines – means that disclosure would reveal State’s ‘guidelines for law enforcement.’”  “With respect to the CCD database information, State avers that ‘disclosure of the withheld instructions to consular officers would also reveal which specific information is omitted or included in the “Consolidated Consular Database” (“CCD”),’ ‘a non-public law enforcement database used to administer and enforce U.S. immigration laws and to prevent and track fraud.’”  “Disclosure of the database information would reveal law enforcement techniques and procedures.”  Finally, the court relates that “State claims that releasing the visa adjudication guidance ‘would allow applicants seeking to fraudulently obtain U.S. visas to tailor their applications in a manner that enhances their chances of success’ and ‘could assist individuals seeking to circumvent the procedures used for adjudicating visas and could reasonably be expected to risk circumvention of the law.’”  “Likewise, releasing the CCD database information would expose ‘technical details of how visa applications are tracked and processed in the CCD’ to ‘criminals seeking to access CCD information.’”  The court finds that “‘[i]t makes sense that wrongdoers could misuse [this] information.’”
  • Litigation Considerations, Vaughn Index/Declaration:  The court finds that “State has met its segregability obligations.”  “It produced a detailed Vaughn index that describes each of the records it withheld along with corresponding exemptions.”
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Exemption 7(E)
Exemption 7, Threshold
Litigation Considerations, In Camera Inspection
Litigation Considerations, Vaughn Index/Declarations
Litigation Considerations, “Reasonably Segregable” Requirements
Updated October 19, 2022