Longas-Palacio v. USCIS, No. 21-2661, 2023 WL 2277128 (S.D. Tex. Feb. 28, 2023) (Hittner, J.)

Longas-Palacio v. USCIS, No. 21-2661, 2023 WL 2277128 (S.D. Tex. Feb. 28, 2023) (Hittner, J.)

Re:  Request for records concerning plaintiff’s removal proceedings

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s motion for summary judgment

• Exemption 3:  The court relates that “USCIS contends it properly withheld information under Exemption 3, specifically related to the ‘No Fly’ list.”  “In response, Plaintiff does not appear to directly challenge the application of Exemption 3 other than to contend ‘the “no-fly” indicator result . . . cannot be arbitrarily applied.’”  “It is not readily apparent what Plaintiff means by this, but nevertheless 49 U.S.C. § 114(r) prevents the disclosure of certain categories of sensitive security information, which includes whether a specific name appears on the ‘No Fly’ list.”  “Therefore, the Court finds USCIS properly withheld [certain material] with respect to the ‘No Fly’ list.”
   
• Exemption 5, Deliberative Process Privilege:  “[T]he Court finds [the] documents [at issue] are protected by the deliberative process privilege and thus exempt from disclosure under Exemption 5.”  The court finds that “[t]he documents are predecisional, given they all predate the initiation of Plaintiff’s removal proceedings.”  “Among these documents are interoffice memorandums, emails, notes, a fraud referral to the Fraud Detection and National Security Directorate (‘FDNS’), and a statement and findings by FDNS.”  “All of these documents purport to contain analysis, deliberations, recommendations, and discussions regarding such recommendations and supporting information.”  “[T]he Court finds USCIS’s Vaughn Index explains the basis for its withholdings under the deliberative process privilege with sufficient specificity.”  “USCIS explains how all of the documents are predecisional, and that they contain interoffice discussions, analysis, and recommendations designed to assist USCIS in formulating its position in this case.”
   
• Exemption 6 & Exemption 7(C):  “[T]he Court finds the information withheld under Exemptions 6 and 7(C) is exempt from disclosure.”  The court relates that “[the withheld] information includes names and other personal identifying information.”  “As stated above, Plaintiff does not contest USCIS’s withholding of the names and personal identifying information of DHS officials.”  “Though Plaintiff does contest the withholding of personal identifying information of nonconsenting third parties who she alleges ‘have exercised their influence to convince DHS officials to act against [Plaintiff] because of their personal animus.’”  “But in her response, Plaintiff not only fails to articulate a public interest that may be served through the disclosure of this information – which is the purpose of FOIA – but rather argues this information should be provided so she may adequately ‘contest the persecution she has experienced.’”  “Indeed, Plaintiff fails to articulate how the disclosure of the names and/or identifying information of third parties serves a public interest.”  “After balancing any public interest in the disclosure of this information with the nonconsenting third parties’ right against an unwarranted invasion of their privacy interest, the Court finds the third parties’ privacy interests outweigh any public interest in the disclosure of this information.”
   
• Exemption 7(E):  “[T]he Court finds [that certain] documents are exempt from disclosure under Exemption 7(E).”  “In this case, virtually all withholdings made pursuant to this exemption relate to either searches or results of such searches of USCIS and other government databases used by USCIS in the course of their investigations and for law enforcement purposes.”  “USCIS thus argues the disclosure of various queries, codes, system checks, searches and search results of various government databases would alert other to the type of information that triggers an investigation by USCIS, give enough information to allow others to alter their behavior to avoid detection, and thus would result in – or at least reasonably create a risk of – the circumvention the law.”  “In her response, Plaintiff generally contends she is entitled to know the information that triggered the investigation into Plaintiff's status in this country, and USCIS is exaggerating the risk of circumvention of the law that could result if the information is disclosed.”  “However, the information Plaintiff seeks – that is, the information collected by USCIS which triggered actions by USCIS – is exactly the sort of information Exemption 7(E) is designed to protect.”  “[T]he Court finds these documents constitute ‘internal agency materials relating to guidelines, techniques, sources, and procedures for law enforcement investigations and prosecutions,’ the disclosure of which could lead to circumvention of the law.”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  The court relates that, “[i]n its supporting affidavit, USCIS contends it conducted a line-by-line review of all the responsive documents and further contends no further segregation of information is possible.”  “Given that only a fraction of the responsive documents were withheld in full and USCIS also produced additional pages after Plaintiff appeal[ed] its initial production, the Court finds USCIS made a diligent effort to redact exempt material while releasing all nonexempt material and the withholdings were not made in bad faith.”  “Thus, absent any grounds to dispute this, the Court finds USCIS released all reasonably segregable information and did not withhold documents in bad faith.”