Ibrahim v. Dept. of State, No. 16-01330, 2018 WL 2107780 (D.D.C. May 7, 2018) (McFadden, J.)

Ibrahim v. Dept. of State, No. 16-01330, 2018 WL 2107780 (D.D.C. May 7, 2018) (McFadden, J.)

Re:  Request for records concerning denial of plaintiff's I–590 Iraqi Resettlement Application and Request for Reconsideration

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's cross-motion for partial summary judgment

• Exemption 3:  The court holds that "the Department has not adequately shown that Exemption 3 applies to any of its withholdings or redactions."  The court relates that defendant relies on "Section 222(f) of the Immigration and Naturalization Act (INA) [which] requires the withholding of Department of State records 'pertaining to the issuance or refusal of visas or permits to enter the United States.'"  The court finds that "a document is not necessarily a permit for purposes of Section 222(f) simply because it conveys permission to enter the United States."  "So the simple fact that a Resettlement Application seeks 'permission to travel to the United States through a letter issued by the Department of State' is not enough to establish that it is a permit."  "And the Department has not identified any specific type of permit created by statute or regulation that issues upon approval of a Resettlement Application or that is denied upon rejection of a Resettlement Application."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "[a]ll but one page of the USCIS's Refugee Application Assessment enjoys the protection of the deliberative process privilege and Exemption 5."  "[The court's] in camera review of the document confirms the Department's representation that it is a predecisional and deliberative document containing a USCIS official's notes and credibility assessments, explaining why the official believed [plaintiff] was not eligible for refugee resettlement."  Additionally, the court finds that "the factual contents of the interview notes are intertwined with the official's credibility determination so that their disclosure would 'inevitably reveal the government's deliberations.'"  Also, the court finds that "although the agency's final decision concurs with the official about the ultimate disposition of [plaintiff's] Request for Resettlement, it does not 'expressly . . . adopt or incorporate by reference' any part of the official's analysis."  "But [the court holds that] the deliberative process privilege does not apply to the USCIS's official assessment of [plaintiff's] Request for Reconsideration or to its chronology."  "The document states that it does not need supervisory review and purports to affirm – not to recommend affirmation of – the decision that [plaintiff] challenged."  "As for the chronology, [the court's] in camera review shows that it does not fall within the scope of Exemption 5 because it is factual rather than deliberative."
   
• Exemption 7(E):  The court holds that "Exemption 7(E) does not justify withholding the [United Nations High Commissioner for Refugees ("UNHCR")] document."  "The Department argues that disclosure of the document would risk circumvention of the law but ignores [plaintiff's] observation that a document prepared by a non-governmental, non-law-enforcement organization to analyze whether a person meets that organization's definition of a refugee is not a document prepared 'for law enforcement purposes.'"  "That said, Exemption 7(E) does apply to the USCIS's Refugee Application Assessment."  "Unlike the UNHCR, the USCIS is a law enforcement agency."  "The lines of questioning recorded in the Assessment highlight circumstances that would have raised national security and public safety concerns, reflect why doubts arose over [plaintiff's] credibility, and illustrate lines of questioning that law enforcement officials use to probe possible concerns for credibility, national security, and public safety."  "Disclosure of these techniques could reasonably be expected to risk circumvention of the law by enabling applicants for refugee status to plan strategic but inaccurate answers to questions that are material to the USCIS's decisions."  "Exemption 7(E) also applies to limited redaction of the USCIS's chronology."  "[The court's] in camera review of this document shows that most of the entries in the timeline are administrative, and disclosure of this information would not provide insight into law enforcement techniques or create an unacceptable risk of circumvention of the law."  "But some information relates to steps that USCIS took or considered taking to evaluate [plaintiff's] application."  "Release of this material would reveal law enforcement techniques in a way that could risk circumvention of the law."  "Finally, Exemption 7(E) does not apply to the USCIS's assessment of [plaintiff's] Request for Reconsideration."  The court finds that "the limited detail in the assessment does not satisfy the requirements of Exemption 7(E)."  "Rather than disclosing sensitive law enforcement techniques, the assessment provides a high-level overview of the case, stating that [plaintiff] had not adequately explained the inconsistencies in his testimony, even considering his alleged PTSD, and had not adequately proved any error made by USCIS at the time of the original determination."  "Disclosure of this information would not risk circumvention of the law."