Ctr. for Immigr. Stud. v. USCIS, No. 22-02107, 2025 WL 405115 (D.D.C. Feb. 5, 2025) (McFadden, J.)

Ctr. for Immigr. Stud. v. USCIS, No. 22-02107, 2025 WL 405115 (D.D.C. Feb. 5, 2025) (McFadden, J.)

Re:  Request for records concerning Temporary Protected Status designation of Haiti

Disposition:  Granting defendant’s motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The court relates that at issue is “an internal policy memo from the Acting Director of USCIS [U.S. Citizenship and Immigration Services] to the Secretary of Homeland Security allegedly discussing a temporal tweak to the designation.”  The court holds that “[t]he memorandum is exempt from disclosure under Exemption 5.” “[Plaintiff] does not really dispute that, at one point, the memo was predecisional and deliberative.”  “Nor could it – the memo was a proposal from the USCIS Acting Director, whose division lacked final authority over the continuous residence date, to the Secretary, who had the final say over that question, to make a prospective change to the Haiti TPS policy.”  “The advisory nature of the document is underscored by the blank section at the bottom of the memo permitting the Secretary to signal his potential disapproval or to offer instructions to modify the proposal.”  “And ‘recommendations from subordinates to superiors lie at the core of the deliberative-process privilege.’”  “Conceding that the privilege applied at one point, [plaintiff] insists that ‘circumstances exist which force [the memo’s] contents outside the protection of Exemption 5’s deliberative process privilege.’”  “It claims that the memo was ‘adopted, formally or informally,’ as the agency’s final position on the continuous residence date when it was signed by the Secretary.”  “As a result, [plaintiff] argues the memo lost protection under the deliberative process privilege.”  “To be clear, the version of the document disclosable under [plaintiff’s] request does not bear the Secretary’s signature.”  “Still, the Court credits [plaintiff’s] argument that the memo was ultimately signed on the ‘Approval’ line by the Secretary.”  “[Supporting] emails strongly suggest as much.” However, the court finds that “[a] manager’s signed approval below a recommendation is not an express adoption.” “[Plaintiff] has offered no evidence beyond a bare signature to indicate that the Secretary endorsed the memo’s rationale.”  “Nor does it matter that the agency ultimately changed the continuous residence date, as likely suggested by the memo.”  “Merely ‘carr[ying] out the recommended decision’ does not mean ‘that the memorand[um] accurately reflected the decisionmaker’s thinking.’”  “[Plaintiff] also argues that the memorandum lost its deliberative and predecisional nature because it became the ‘working law’ of the agency.”  “This theory is an ill-fitting shoe here.”  “Advisory memoranda hashing out the pros and cons of an ongoing policy debate do not serve as a body of working law.”  “They do not ‘reflect[ ] [the agency’s] formal or informal policy on how it carries out its responsibilities.’”  “They are not ‘routinely used and relied upon by field personnel’ in performing their administrative duties.”
   
• Exemption 5, Foreseeable Harm and Other Considerations:  “Because the agency has met its burden to show that the memo is entitled to the deliberative process privilege, the Court asks whether it has shown that the memo’s release would cause ‘reasonably foreseeable harm’ to the interests protected by that privilege.”  “The agency has done so.”  “It stresses that divulging the memo ‘would foreseeably harm USCIS’s legitimate interest in the critical and candid give-and-take of this vital consultative process as the agency determines how to proceed in a fraught area implicating foreign relations.’”  “And it contends that release would ‘interfere with USCIS’s ability to make sound judgments on future sensitive foreign policy matters.’”  “This rationale falls squarely within the interests the exemption was designed to protect:  frank communication within the agency without fear of public reprisal.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  The court finds that “USCIS conducted two line-by-line reviews of the memo and released what it considered to be reasonably segregable.” “When an agency conducts such a line-by-line review, it is ‘entitled to a presumption that [it] complied with [its] obligation’ to release segregable material.”  “More, [defendant’s] declaration attests that any further disclosure ‘cannot be made without revealing decision-making processes which are protected by the deliberative process privilege.’”  “The Court also conducted its own in camera review of the memorandum, and it is satisfied that USCIS has released all reasonably segregable portions of the document.”