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Am. Immigr. Council v. CBP, No. 19-2965, 2023 WL 2755412 (D.D.C. Apr. 3, 2023) (Contreras, J.)


Am. Immigr. Council v. CBP, No. 19-2965, 2023 WL 2755412 (D.D.C. Apr. 3, 2023) (Contreras, J.)

Re:  Request for records concerning program for using CBP agents to conduct credible fear interviews, which is part of the asylum-seeking process

Disposition:  Denying defendants’ motion for reconsideration as moot; granting in part and denying in part defendants’ renewed motion for summary judgment granting in part and denying in part plaintiffs’ renewed cross-motion for summary judgment

  • Exemption 5, Deliberative Process Privilege:  “The Court will first consider the disputed DHS documents and then turn to the disputed USCIS documents.”  The court relates that “[t]he first document in dispute is an issue paper dated May 16, 2019 regarding the U.S. Border Patrol’s Credible Fear Pilot Program.”  “The Court’s previous decision asked Defendants to ‘more clearly show (1) “what deliberative process is involved,” and (2) “the role played by the documents in issue in the course of that process,”’ and ‘should also explain (3) the “nature of the decisionmaking authority vested in the officer or person issuing the disputed document,” and (4) the “relative positions in the agency’s chain of command occupied by the document's author and recipient.”’”  “The Court finds that Defendants have failed to show that this document is predecisional and deliberative.”  “For starters, this document is not predecisional because it merely ‘embod[ied] or explain[ed] a policy that the agency adopt[ed].’”  “Nothing in these pages provides evidence describing ‘what decision or policy this document was leading towards.’”  “Instead, the document provides an overview of Defendants’ credible fear pilot program as it was ‘already established’ and being ‘implement[ed].’”  “Although Defendants assert that the document was subsequently revised on April 27, 2020, ‘[t]he fact that the document is a non-final draft does not on its own demonstrate that the document is predecisional.’”  “Put differently, no amount of subsequent drafts would make this document any more predecisional because this document is not predecisional to begin with.”  “Nor is the document deliberative.”  “Here, ‘[t]he government has failed to identify any deliberative component’ to the document; nor could it, because the document ‘simply describe[s] already-made and in-place policy choices.’”  “[I]t does not reflect or suggest the existence of a ‘give-and-take’ that is indicative of the ‘consultative process.’”  “Finally, although Defendants aver that this issue paper was a draft, ‘drafts must also be deliberative in content’ to qualify for the deliberative process privilege, and this draft is not.”

    Second, the court considers “a ‘24-page draft briefing memo titled “CBP Migration Statistics – Fiscal Year 2019 Year to Date.”’”  “It ‘contains a draft water mark on all pages, is undated, and contains placeholders throughout for input from certain DHS employees.’”  “It also has ‘redline edits and bubble comments throughout’ and ‘reflects internal discussions between DHS employees, including information DHS may have determined was confidential and not appropriate for release.’”  “DHS claims that the document ‘contain[s] non-finalized statistics, a plan for the dissemination of this information, and draft talking points for the briefing on these statistics.’”  “In addition, ‘[t]he draft document also contains the non-finalized draft news release and the draft media advisory.’”  “This document is predecisional. Defendants explain that ‘[t]he process at issue is the decision of what to say during the briefing and how to announce the statistics[.]’”  “The strategic decisions being discussed in this document were not yet final: as evidence, the entire document has the watermark ‘DRAFT,’; some sections contain highlighting prompting different individuals to fill in additional information; some statistics are highlighted for confirmation or further update; and there are several unresolved comment bubbles.”  “Because this document was ‘prepared in order to assist an agency decisionmaker’ in the press briefing, it was predecisional.”  “The document is also deliberative.”  “Disclosing these talking points and related information would ‘reveal the give and take of the consultative process.’”  “Although some of the information in this document seems factual – such as statistics about border crossings and medical costs – these are ‘facts and statistics that best show some policy in a favorable light’ and thus ‘would reveal the agency’s deliberative process.’”  “The Court also finds that disclosure of this document would cause reasonably foreseeable harm under the FOIA Improvement Act of 2016.”  “The Vaughn index explains that disclosure of this draft would ‘inhibit the candid discussion of issues between employees’ such as ‘deliberations about media strategy for future releases of CBP statistics, the release of which is frequent, and talking points on such statistics.’”  “The Court agrees that revealing the details of Defendants’ internal deliberations about how to present these statistics and discuss their actions in the context of the hotly debated field of immigration policy would harm the deliberative process that Exemption 5 seeks to protect.”  “Thus, Defendants are entitled to withhold information in this document under Exemption 5.”

    Third, the court considers “‘a 5 page working draft document titled “Department of Homeland Security Strategy to Address Crisis at the Southern Border Draft Outline.”’”  The court finds that “Defendants represent that this document is a ‘working version’ that . . . is ‘not the final version of the document,’ although ‘no final version of the document exists.’”  The court finds that “[t]his document is predecisional.”  “Defendants aver that the undated ‘document is a working draft version of an internal communications strategy and proposed six month timeline to bolstering security circulating for review and comment between DHS senior leaders[.]’”  “As further evidence that this document ‘was “prepared in order to assist an agency decisionmaker in arriving at his decision,” rather than to support a decision already made,’ . . . Defendants explain that ‘[t]his document is a precursor to the development of a plan to share with the White House,’ . . . .”  “Even though no final version of the document exists, ‘the draft is still a draft and thus still pre-decisional.”  “This document is also deliberative.”  “The outline describes various goals to address the crisis at the southern border, going into detail about objectives and actions to meet those goals.”  “True to its description – ‘an internal communications strategy,’ – it was ‘circulating for review and comment between DHS senior leaders, specifically senior leaders associated with the DHS Office of Strategy, Policy and Plans and attorneys with the DHS Office of the General Counsel.’”  “The outline, which ‘proposed actions as to steps DHS should take to address the crisis at the Southern Border, and big-picture departmental strategies to address border security/foreign policy as to a number of countries’ was subject to deliberation.”  “The Court also finds that disclosure of this document would cause reasonably foreseeable harm.”  “Defendants have shown that disclosure ‘would mislead the public and inhibit the candid and forthright discussion of issues between senior leaders[.]’”  “The Court finds that forcing Defendants to disclose draft outlines describing their yet-to-be finalized strategies for tackling immigration challenges would chill the candid exchange of ideas on this heated topic.”  “Thus, Exemption 5 protects information in this document from disclosure.”

    Fourth, the court considers “‘an internal DHS document entitled “Issues for Discussion between CBP and USCIS,” which consists of 8 pages of confidential, internal communications pertaining to a number of immigration programs and initiatives.’”  The court finds that “[t]he document consists of background on various topics with USCIS talking points for each topic.”  “This document is predecisional.”  “The author was an USCIS official, and the recipient was another USCIS official ‘who had authority to discuss this wide range of pending issues needing a decision with CBP.’”  “The talking points ‘helped prepare the USCIS attendees’ for a discussion between USCIS and CBP concerning ‘decisions and policies on 10 separate initiatives.’”  “The document’s background information helped ‘to inform the USCIS officials involved in the discussion with CBP officials of these initiatives, in advance of a decision being made as to how these issues would be resolved.’”  “The document is also deliberative.”  “It ‘reflect[s] a part of the give-and-take between the drafter and the [USCIS attendees] leading up to [their] external interactions.’”  “The document’s title – ‘CBP meeting mk edits Clean v1.1’ – also shows that these talking points were edited and refined.”  “The document is also deliberative in the sense that the USCIS attendees, as with anyone referencing talking points, ‘may elect to use all, some, or none of the talking points prepared for [them].’”  “In short, the talking points are deliberative because they were ‘prepared to help the agency formulate its position.’”  “Release of this document would cause reasonably foreseeable harm.”  “DHS has explained that the initiatives under consideration in the talking points ‘remain under DHS/USCIS/CBP consideration currently,’ so the release of premature, non-finalized agency positions on sensitive immigration topics ‘would cause harm to DHS’[s] position in litigation, confusion to the public regarding regulatory actions, and hinder the candid discussion of issues among employees.’”  “Thus, Defendants’ withholding of information in this document under Exemption 5 is proper.”

    Fifth, regarding certain USCIS documents, the court relates that “USCIS Bates 3-13 consists of two issue papers:  USBP Credible Fear Pilot Program (May 8, 2019) and USBP Credible Fear Pilot Program (April 17, 2019) (together, Bates 3-11) and another issue paper focused on CBP employee training (May 1, 2019) (Bates 12-13).”  “The Court previously found that Defendants’ withholding of these documents was unjustified because they had not adequately explained how they were predecisional or deliberative.”  “Now, as then, the Court still finds that Defendants have not shown that these documents are entitled to Exemption 5’s deliberative process privilege.”  “Each of these documents describes how the pilot program works and contains a list of action items followed by notation indicating the status of these action items.”  “The May 8, 2019 issue paper . . . apparently originated after the pilot program had already kicked off.”  “[T]he May 8, 2019 issue paper merely ‘embod[ied] or explain[ed] a policy that the agency adopt[ed]’ by ‘explaining actions to be taken in implementing an already established pilot program.’”  “Thus, it is predecisional.”  “The April 17, 2019 issue paper also concerns the pilot program but focuses on preliminary steps leading up to the launch of the program.”  “Its predecisional nature is a closer call because by implying that the pilot program had not yet kicked off, it supports the notion that the contours of the program were still not final.”  “On the other hand, even if the program was not finalized, the document may be final with respect to preliminary steps Defendants planned to take to initiate the program.”  “Indeed, Defendants did not say whether this document ‘describing how [the steps leading up to the launch of] the pilot program would work ended up being adopted by the agency, in which case [the document] would not necessarily continue to be predecisional.’”  “The May 1, 2019 issue paper – the one centered on CBP employee training – is also a closer call because it indicates that the training plan requires additional approval, which supports Defendants’ argument that this document is predecisional.”  “But once again, Defendants did not indicate whether any supposed additional approval merely adopted this version as the final version of the training plan.”  “To muddle matters further, as with last time, Defendants’ Vaughn index ‘lists [these] three documents in the same entry,’ making it difficult for the Court to carefully consider each issue paper on its own.”  “The Court need not dwell on the question of whether the April 17 and May 1 issue papers are predecisional, however, because in all events it finds that these issue papers are not deliberative.”  “Defendants still failed to show how these issue papers ‘reveal the deliberative process used to evaluate the Pilot Program, the status of such an internal review, and the methods utilized to conduct such review.’”  “Now, as then, ‘[t]he documents are described as documenting how the pilot program, including its training, would work; there is no indication that they contain the drafters’ impressions or evaluations of the program.’”  “Because Defendants have not given the Court ‘a clear understanding of what deliberative process is asserted and the relationship between the document and that deliberative process,’ the Court finds that Exemption 5 does not apply here.”
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Updated May 4, 2023