Emuwa v. DHS, No. 22-5153, 2024 WL 4019115 (D.C. Cir. Sept. 3, 2024) (Katsas, J.)
Emuwa v. DHS, No. 22-5153, 2024 WL 4019115 (D.C. Cir. Sept. 3, 2024) (Katsas, J.)
Re: Request for written assessments prepared by asylum officers regarding whether to grant or deny asylum to certain applicants
Disposition: Affirming district court’s grant of government’s motion for summary judgment
- Exemption 5, Foreseeable Harm and Other Considerations: “[The Court of Appeals for the District of Columbia Circuit] affirm[s] the summary judgment for DHS.” The court relates that “[t]he parties agree that the deliberative-process privilege applies to the four requested Assessments.” “The only contested question is whether DHS adequately showed that disclosure of their analysis portions, including cited source material, would foreseeably harm interests the privilege protects.” The court finds that “[DHS’s] supplemental declaration adequately demonstrates foreseeable harm.” “As explained above, [DHS] confirmed that the withheld material consisted of recommendations from subordinates to supervisors on whether to grant pending asylum applications, . . . which are a ‘classic example’ of material protected by the deliberative-process privilege . . . .” “[DHS’s] analysis focused on why release of the ‘withheld portions of the four assessments at issue’ (not privileged information in general) ‘would’ (not could) ‘interfere with USCIS’s ability’ to receive candid advice from its line asylum officers.” “And [DHS] laid out contextual considerations tending to support the reasonableness of that judgment, including the ‘sensitive’ nature of asylum adjudications and the specific concern about facilitating asylum fraud.” “The affidavit thus showed ‘a link between the specified harm’ – reduced candor by line asylum officers making recommendations to superiors – ‘and the specific information’ withheld – the officials’ analyses of applicants’ interviews.” “And this ‘chilling of candid advice’ is the precise harm that the deliberative-process privilege seeks to prevent.”
“The [requesters] object that [DHS] failed to address each of the four Assessments individually.” “But [the court has] held that agencies may show foreseeable harm ‘on a category-by-category basis rather than a document-by-document basis,’ so long as each category contains ‘like records’ and the threat of harm is ‘independently demonstrated for each category.’” “Here the declaration made clear that there were no material differences among the four disputed Assessments, which summarized asylum interviews, assessed the applicants’ credibility and evidence, and made recommendations to superiors.” “Having established a relevant category of like documents, [DHS] had no obligation to address each document individually.”
“The [requesters] raise further arguments based on the release of other, assertedly similar immigration documents, as well as the occasional release of Assessments to Refer.” “[The requesters] contend that these various releases undercut [DHS’s] assessment of foreseeable harm in this case.” “First, the plaintiffs point to the routine release of three different kinds of asylum documents – notices of intent to deny, notices of intent to terminate, and records of determination.” “But USCIS prepares these documents for release to the affected alien . . . .” “The release of these final notices does not undermine the need to protect the confidentiality of pre-decisional documents written for consumption within the agency itself.”
Additionally, the court relates that “the [requesters] point to the past release of Assessments to Refer.” “But [the court finds that] ‘an agency does not forfeit a FOIA exemption simply by releasing similar documents in other contexts.’” “The [requesters] allege that the Immigration and Naturalization Service, USCIS’s predecessor agency, regularly released Assessments requested under FOIA between 1998 and 2002, and that USCIS did so from 2003 to 2005.” “But the record contains fewer than ten such releases.” “Moreover, an alleged practice started by a different agency and discontinued some two decades ago says little about the sensitivity of – and concomitant need to protect deliberations about –asylum adjudications today.” “[The instances cited by the requester] simply show that the government is sometimes willing to suffer the consequences of releasing Assessments in order to achieve some competing institutional objective.” “That hardly suggests that the routine release of Assessments through FOIA would not foreseeably chill internal agency deliberations.”
- Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing: The Court of Appeals for the District of Columbia Circuit relates that “[t]he [requesters] object that [DHS] failed to conduct a line-by-line review of the withheld materials to determine whether any portion of them could be safely released.” “But [the court finds that DHS] confirmed that [it] ‘review[ed]’ the redactions to ‘consider[ ] whether any information could be segregated and released without causing a foreseeable harm to the agency.’” “And [DHS] explained the agency’s view that ‘no further segregation’ was possible without disclosing such information.” “[USCIS] thus did conduct the segregability analysis required for assessing foreseeable harm.” “The [requesters] further assert that the Assessments’ discussion of source materials could be safely segregated and released.” “But discussion of source material was part-and-parcel of the ‘analysis, opinions, deliberations, and recommendations’ contained in the Assessments and addressed in the declaration.” “And revealing how asylum officers assessed those sources would facilitate asylum fraud.” “Even the plaintiffs’ complaint acknowledges that ‘[i]f applicants know what sources are good, they can tailor their own research accordingly.’” “In short, releasing the sources underlying the analysis would cause a similar harm to the deliberative process as releasing the analysis itself.”