Nat'l Immigrant Justice Ctr. v. DOJ, 953 F.3d 503 (7th Cir. 2020) (Scudder, J.)

Nat'l Immigrant Justice Ctr. v. DOJ, 953 F.3d 503 (7th Cir. 2020) (Scudder, J.)

Re:  Request for communications to and from Attorney General in immigration appeals certified for executive decision

Disposition:  Affirming district court's grant of government's motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The Court of Appeals for the Seventh Circuit finds that "[t]he district court found the withholding proper, and so do we."  The court finds that "the challenged documents are paradigmatic examples of records embodying deliberative communications."  "Recall what [the requester] sought – all communications to and from the Attorney General or the Office of the Attorney General discussing the pros and cons of certifying a case for decision, commenting on different lines of reasoning supporting a particular decisional path, and offering suggestions on draft opinions."  "The documents, in short, embody precisely the type of legal and policy discussions and exchanges of ideas at the heart of the deliberative process privilege."  "Exemption 5 exists to authorize DOJ's withholding of these documents from public disclosure." 
   
  The court notes that "[the requester] does not dispute that the documents fall within the ambit of the deliberative process privilege."  "It instead renews the invitation it extended to the district court to view the documents as embodying both pre-decisional discussions and ex parte communications, and to conclude that the presence of the latter removes the records from the protection otherwise conferred by Exemption 5."  The court holds that "[the requester's] position misses the mark."  "At the time that the Attorney General certifies a case and chooses to consult with attorneys in DOJ's Office of Immigration Litigation or Office of the Solicitor General, no litigation is pending in any federal court."  "The removal proceeding is ongoing solely within DOJ, awaiting a decision by the Attorney General."  "In no way are the attorneys – at that point in the multi-step process that can result in an immigrant's removal – advising and assisting the Attorney General adverse to the noncitizen."  "Attorneys assisting an adjudicator do not engage in ex parte communications when performing their duties."  "Put another way, the unfairness that the ex parte communications doctrine seeks to prevent – namely, that one party has the judge's ear while his adversary lacks the same opportunity . . . does not apply here."  "[The court] see[s] no principled way to decide today's case in [plaintiff's] favor and not undermine the confidentiality on which sound decision-making depends within any number of other agencies and departments."