Asian Ams. Advancing Just. – Asian L. Caucus v. DHS, No. 21-02844, 2022 WL 3579886 (N.D. Cal. Aug. 19, 2022) (Donato, J.)

Asian Ams. Advancing Just. – Asian L. Caucus v. DHS, No. 21-02844, 2022 WL 3579886 (N.D. Cal. Aug. 19, 2022) (Donato, J.)

Re:  Request for records concerning factors government uses to determine whether Vietnamese citizens ordered removed from United States will be accepted by Vietnamese government

Disposition:  Granting defendant’s motion for summary judgment

• Exemption 7, Threshold:  The court holds that “the government has satisfied the threshold requirement of Exemption 7.”  The court relates that at issue is “a copy of a memorandum of understanding between the United States and Vietnam ‘that implicates the repatriation of pre-1995 Vietnamese immigrants’ (MOU).”  The court notes that the MOU “indicates that one of the main purposes for the MOU is ‘to establish procedures on the prompt and orderly acceptance of Vietnamese citizens who have been ordered removed by U.S. competent authority and who arrived in the United States before July 12, 1995.’”  The court finds that “[t]he MOU and [defendant’s] declaration amply establish that there is a ‘rational nexus’ here between the MOU and DHS-ICE’s ‘authorized law enforcement activities’ under the federal immigration laws.”
   
• Exemption 7(E):  The court holds that “[defendant] has carried its burden of demonstrating that disclosure of the redacted information ‘could reasonably be expected to risk circumvention of the law.’”  The court relates that the withheld information consists of:  “the ‘conditions’ for ‘eligibility for acceptance of return’;” the “‘factors to be considered by the DHS before removal’;” and the “‘factors to be considered by the [Ministry of Public Security of the Socialist Republic of Viet Nam] before acceptance of return.’”  “The Court agrees with the government and ALC that these redacted sections are properly analyzed as ‘guidelines’ under Exemption 7(E), and not as ‘techniques and procedures.’”  The court finds that “‘[u]sed in a general way, “the law” encompasses both prohibitions against certain behaviors as well as the legally prescribed consequences for violations.’”  “Removal from the United States is a legal consequence for certain violations of immigration law.”  “The government has established that disclosure of the guidelines . . . could enable Vietnamese citizens to ‘try to avoid removal and circumvent the law by manipulating or concealing their documentation to include or not include one of the factors listed . . . .’”  “The risk of circumvention is heightened here because the MOU applies only to Vietnamese citizens who arrived in the United States before July 12, 1995, and have been ordered removed.”  “‘ICE is responsible for gathering the information needed to execute the terms of the MOU,’ and ICE understandably lacks reliable information for a time period that reaches decades into the past, to the time before diplomatic relations were established between the United States and Vietnam.”
  
  The court relates that “[i]n [plaintiff’s] view, [the withheld information is] ‘well beyond the investigatory or prosecutorial stage and relate[s] solely to the logistics of an individual's removal.’”  “This is not a fair characterization.”  The court finds that “[defendant’s] Declaration and MOU make clear that ICE cannot effectuate removals of relevant individuals from the United States without a corresponding acceptance of return for these individuals into Vietnam.”  “The ‘prosecutorial stage,’ as [plaintiff] puts it, does not end with the removal order but instead with the actual removal, and that process necessarily encompasses the circumstances under which Vietnam will issue travel documents to an individual to be removed, which is exactly what the redacted sections discuss.”  Additionally, the court finds that “[plaintiff’s] suggestion that this information does not fall under Exemption 7(E) because it was previously disclosed . . . is also unavailing.”  “[Plaintiff’s] proffer of disclosures that are highly general in nature, or relate to different countries altogether, does not establish that the redacted information is ‘routine and generally known.’”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  “Because the remaining redactions are so limited in scope, the Court finds that there is no content that can be segregated from the exempt information and turned over to plaintiff.”