Rojas-Vega v. United States Citizenship & Immigration Service

,UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
:
DANY ROJAS-VEGA, :
:
Plaintiff, :
:
v. : Civil Action No. 13-1540 (ABJ)
:
UNITED STATES CITIZENSHIP & :
IMMIGRATION SERVICE, et al., :
:
Defendants. :
_________________________________________ :

MEMORANDUM OPINION

Plaintiff filed this action under the Freedom of Information Act (“FOIA”), see 5 U.S.C. §

552. This matter is before the Court on Defendants’ Renewed Motion for Summary Judgment,

[ECF No. 35] in which U.S. Citizenship and Immigration Services (“USCIS”) and U.S.

Immigration and Customs Enforcement (“ICE”) explain their decisions to withhold information

under Exemptions 7(C) and 7(E), and ICE explains its decision to withhold information under

Exemptions 5 and 6. Plaintiff opposes the motion and has filed a cross-motion for summary

judgment [ECF No. 41]. For the reasons discussed below, the Court will grant defendants’ motion

and deny plaintiff’s cross-motion.

I. BACKGROUND

Plaintiff is “a native and citizen of Costa Rica.” Rojas-Vega v. Gonzales, 154 F. App’x 25,

26 (9th Cir. 2005). It appears that he pled guilty to a drug offense in a California state court, see

id., and he subsequently was “charged with removability under section 237(a)(2)(B)(i) of the

Immigration and Nationality Act based upon an October 6, 1995, conviction for possession of

1
controlled substance paraphernalia.” In re Dany Alberto Rojas-Vega, 2004 WL 1398634, at *1

(B.I.A. Mar. 19, 2004) (per curiam); see Freedom of Information Action (“Compl.”) at 3.

Plaintiff states that he was aware of the potential impact a criminal conviction would have

on his immigration status, and he raised his concern with the court during the October 6, 1995

proceedings. See Dany Rojas’s Decl. in Opp’n of Def.’s Renewed Mot. for Summ. J. [and] in

Support of Pl.’s Cross-Mot. for Summ. J. (“Pl.’s Decl.”) ¶¶ 1-2. He “informed the court that [he]

would . . . plea[d] guilty to any charge[ if] no immigration consequences would result from his

plea ever.” Id. ¶ 2. According to plaintiff, the court adjourned the proceedings allowing the

prosecutor to consult with INS, id. ¶ 3, and when the court reconvened “[o]n that same day,” the

prosecutor stated on the record “that INS . . . acquiesced to plaintiff’s terms[,]” id. ¶ 4. Thus,

plaintiff claimed, he entered a guilty plea “reluctantly . . . after . . . assurances that a solid plea

bargain was struck with INS[,]” id., and “that the plea bargain would be honored,” id. ¶ 5.

Nevertheless, “[o]n August 31, 2001 . . . INS instituted removal proceedings solely based on the

1995 conviction.” Id. ¶ 7; see Mem. of P. & A. in Support of Pl.’s Opp’n to Defs.’ Mot. for Summ.

J. & Cross-Mot. for Summ. J. (“Pl.’s Opp’n”) at 2 ¶ 2.

The operative FOIA request in this case was submitted to USCIS’s National Records

Center (“NRC”) in May 2012 (case number NRC2012052309). See Mem. of P. & A. in Support

of (1) Defs.’ Mot. to Dismiss or, in the Alternative, for Summ J. and (2) Opp’n to Pl.’s Mot. to

Preserve Documents (“Defs.’ First Mem.”), Decl. of Jill A. Eggleston (“First Eggleston Decl.”) ¶¶

7-8. In subsequent correspondence, plaintiff narrowed the scope of his request to information

about:

1. The State “change of plea and sentencing proceedings” in
case number M707038
2. The memos[,] bench notes and any and all related
information relating to the October 6, 1995 proceedings.

2
First Eggleston Decl., Ex. C (Letter to USCIS, NRC, FOIA/PA Office, dated June 19, 2012) at 1.

NRC staff determined that any records responsive to plaintiff’s FOIA request were likely to have

been located in his Alien File (“A-File”), id. ¶ 11, where “[a]ll official records generated or held

by U.S. immigration authorities pertaining to [p]laintiff’s] U.S. immigration transactions should,

as a matter of course, be consolidated[,] id. ¶ 11 n.3. USCIS identified 2,542 pages responsive to

plaintiff’s request, released 2,054 pages in their entirety, released 79 pages in part, and withheld

21 pages in full. Id. ¶ 17; see id., Ex. H (Letter to plaintiff from Jill A. Eggleston, Director, FOIA

Operations, NRC, USCIS, dated September 19, 2012). “The . . . undisclosed information was

withheld pursuant to [Exemptions 7(C) and 7(E)].” Id ¶ 17. The search of plaintiff’s A-File did

not locate transcripts or any other information pertaining to state court proceedings on October 6,

1995. Id. ¶ 13; see id. ¶ 10 n.2. 1

USCIS staff located records originating at ICE while reviewing plaintiff’s A-File, and

referred 388 pages of records to ICE for its direct response to plaintiff. Id. ¶ 16; see id., Ex. G

(Memorandum to Freedom of Information Act Office, ICE, from Jill A. Eggleston dated

September 19, 2012). ICE received only 379 pages, however. Defs.’ First Mem., Decl. of Catrina

Pavlik-Keenan (“Pavlik-Keenan Decl.”) ¶¶ 5-6. Of these 379 pages, ICE released 71 pages in full,

released 252 pages in part, and withheld 56 pages in full. Mem. of P. & A. in Support of Defs.’

Renewed Mot. for Summ. J. (“Defs.’ Second Mem.”), Decl. of Fernando Piniero (“Piniero Decl.”)

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Plaintiff had been notified “previously . . . that the A-[F]ile did not include a verbatim copy of
the proceedings for Case No. M707038/VF0173, nor any indication which INS attorneys may have
been contacted by the District Attorney’s [O]ffice on October 6, 1995, nor any interview notes or
memos within Plaintiff’s specified date range.” First Eggleston Decl. ¶ 13; see id., Ex. F (letters
to plaintiff dated July 23, 2003 and June 17, 2009).
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¶ 12. “ICE withheld portions of the documents under . . . Exemptions 5, 6, 7(C), and 7(E)[.]”

Pavlik-Keenan Decl. ¶ 8.

Plaintiff believes that transcripts of the October 6, 1995 plea proceedings were in the

possession of INS, see Pl.’s Decl. ¶ 7, and that, in violation of the FOIA, neither INS nor its

successor agencies (USCIS and ICE) released the transcripts to him. See Compl. ¶¶ 5, 7.

II. DISCUSSION

A. Summary Judgment in a FOIA Case

“FOIA cases are typically and appropriately decided on motions for summary judgment.”

Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). On a motion for summary judgment, the

Court generally “must view the evidence in the light most favorable to the nonmoving party, draw

all reasonable inferences in his favor, and eschew making credibility determinations or weighing

the evidence.” Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008); see also Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Ordinarily, where the agency moves for

summary judgment, the agency must identify materials in the record to demonstrate the absence

of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1). Plaintiff as the non-moving

party then must point to specific facts in the record to show that there remains a genuine issue that

is suitable for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). But where, in a FOIA

case, plaintiff has not provided evidence that an agency acted in bad faith, “a court may award

summary judgment solely on the basis of information provided by the agency in declarations,”

Moore, 601 F. Supp. 2d at 12, provided that the declarations are not “conclusory, merely reciting

statutory standards, or . . . too vague or sweeping.” King v. U.S. Dep’t of Justice, 830 F.2d 210,

219 (D.C. Cir. 1987) (footnote omitted).

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B. Exemptions

The Court concluded that the USCIS conducted a reasonable search for records responsive

to plaintiff’s request and granted defendants’ first motion for summary judgment in part on this

basis. However, because neither USCIS nor ICE explained its reliance on the claimed FOIA

exemptions, the Court denied its motion in part. 2 The Court now addresses each claimed

exemption in turn.

1. Exemption 5

Exemption 5 protects from disclosure “inter-agency or intra-agency memorand[a] or letters

which would not be available by law to a party other than an agency in litigation with the agency.”

5 U.S.C. § 552(b)(5). “[T]he parameters of Exemption 5 are determined by reference to the

protections available to litigants in civil discovery; if material is not available in discovery, it may

be withheld from FOIA requesters.” Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d 508,

516 (D.C. Cir. 1996) (internal quotation marks omitted); NLRB v. Sears, Roebuck & Co., 421 U.S.

132, 148 (1975).

Deliberative Process Privilege

The deliberative process privilege “shields only government ‘materials which are both

predecisional and deliberative.’” Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir. 1997) (quoting

Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768, 774 (D.C. Cir. 1988) (en banc)). To

show that a document is predecisional, the agency need not identify a specific final agency

decision; it is sufficient to establish “what deliberative process is involved, and the role played by

the documents at issue in the course of that process.” Heggestad v. U.S. Dep’t of Justice, 182 F.

2
The Court neither revisits the adequacy of the USCIS’s search nor addresses plaintiff’s
challenges to the search, such as his assertions of “bad faith,” see generally Pl.’s Opp’n ¶¶ 21-25,
all of which pertain to the scope and results of the search.
5
Supp. 2d 1, 7 (D.D.C. 2000) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854,

868 (D.C. Cir. 1980)). A document is “deliberative” if it “makes recommendations or expresses

opinions on legal or policy matters.” Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975).

Attorney Work Product Privilege

The attorney work product privilege protects material gathered and memoranda prepared

by an attorney in anticipation of litigation. See Hickman v. Taylor, 329 U.S. 495. 510-11 (1947).

Records may be withheld as attorney work product if they contain the “mental impressions,

conclusions, opinions or legal theories of an attorney” and were “prepared in anticipation of

litigation.” Fed. R. Civ. P. 26(b)(3); see Miller v. U.S. Dep’t of Justice, 562 F. Supp. 2d 82, 115

(D.D.C. 2008) (concluding that documents which “reflect such matters as trial preparation, trial

strategy, interpretation, personal evaluations and opinions pertinent to [plaintiff’s] criminal case”

qualify as attorney work product under Exemption 5); Heggestad, 182 F. Supp. 2d at 8 (stating

that the attorney work product privilege “covers factual materials prepared in anticipation of

litigation, as well as mental impressions, conclusions, opinions, and legal theories”). Materials

may be withheld under Exemption 5 under both the deliberative process privilege and the attorney

work product privilege. See, e.g., Miller, 562 F. Supp. 2d at 114-15; Heggestad, 182 F. Supp. 2d

at 8-12.

Here, “ICE applied [Exemption 5] to protect from disclosure attorney work-product,

attorney notes and attorney-client communications.” Piniero Decl. ¶ 15. It withheld “records

compiled by an attorney assigned to an alien’s immigration case [which] include[d] handwritten

attorney notes[,] correspondence regarding hearings, testimony and strategy’s [sic] made in

contemplation of litigation” on the ground that “[r]elease of deliberative notes could undermine

attorney litigation strategy.” Id. ¶ 16. In addition, ICE withheld attorney-client communications,

6
including “emails related to hearings, testimony, legal analysis and litigation strategy,” as well as

“correspondence containing legal questions presented, challenges, and proposed government

responses.” Id. ¶ 17. The declarant explained that release of these memoranda, notes and emails

“could chill future free communication and deliberation between attorneys within [ICE]” and inter-

agency communication “between the attorneys representing federal agencies,” both within ICE

and involving counsel at the Departments of Homeland Security and Justice. Id.

Plaintiff responds by noting that his FOIA “request involves a plea bargain, Pl.’s Opp’n at

15, which he characterizes as contractual in nature, see id. at 21. He posits that in light of ICE’s

purported “admi[ssion] that said emails, memorandums [sic], letters, notes, [and] communications

did relate to the 1995 conviction pursuant to [plaintiff’s] plea bargain[,]” id., the information

“defendants have [withheld] under [Exemption 5] . . . is discoverable under FOIA,” id.

Plaintiff also attacks ICE’s reliance on the deliberative process privilege. For example, he

challenges ICE’s assertion of the deliberative process privilege to protect a six-page document

containing “an email chain between [a] Department of Justice attorney and ICE trial attorney and

other ICE employees,” Piniero Decl., Vaughn Index at 23, arguing that these communications are

post-decisional, not pre-decisional.” Pl.’s Opp’n at 17. In plaintiff’s scenario, the “decisions”

would have been the plea bargain struck in 1995 and the alleged breach of the plea bargain on

August 31, 2001 when removal proceedings commenced, so records generated after August 31,

2001 would not fall within the scope of Exemption 5.

It is true that the declaration and Vaughn Index merely hint at any connection between the

information withheld and a particular agency decision. But even if the deliberative process

privilege does not apply, it is apparent that the same information is protected under the attorney

work product privilege. For example, the events giving rise to certain inter-agency

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communications pertained to the government’s positions with regard to plaintiff’s immigration

proceedings, see Piniero Decl., Vaughn Index at 6, 23-24, 29, and his habeas petition, see id.,

Vaughn Index at 22. Among the information withheld are a “trial attorney’s pre-hearing notes in

preparation for trial, [his] impression of the proceedings of the merits hearing, possible questions

to ask witnesses and [his] thoughts regarding the evidence presented.” Piniero Decl, Vaughn Index

at 6. Also withheld are an ICE attorney’s handwritten notes, id., Vaughn Index at 23,

correspondence regarding litigation strategy, id., Vaughn Index at 25, “recommendations

regarding [plaintiff] and his petition for habeas corpus, as well as ICE immigration litigation

strategy.” Id., Vaughn Index at 22. The information described in ICE’s supporting declaration

and Vaughn index is precisely the sort of information Exemption 5 is designed to protect. The

Court therefore concludes that ICE properly withheld information under Exemption 5.

2. Exemption 6

Exemption 6 protects “personnel and medical files and similar files the disclosure of which

would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Any

information that “applies to a particular individual” qualifies for consideration under this

exemption. U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982); accord New

York Times Co. v. NASA, 920 F.2d 1002, 1005 (D.C. Cir. 1990) (en banc). Here, ICE applies

Exemption 6 “to protect from disclosure the names, signatures, initials, personal internal

identifying numbers, telephone numbers and email addresses of [INS and] ICE[] attorneys, other

government employees[,] and personal identifying information of third parties to include the

names, addresses, phone numbers, birth dates, and identifying statements within ICE’s records.”

Piniero Decl. ¶ 19. Plaintiff does not challenge ICE’s reliance on Exemption 6, and as to this

ground for withholding information, the Court will grant the defendants’ motion as conceded. See,

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e.g., Brillhart v. FBI, 869 F. Supp. 2d 12, 15 (D.D.C. 2012) (granting summary judgment to

defendant on claimed exemptions where “[p]laintiff does not challenge, and thus concedes,

defendant’s properly documented reasons for redacting information . . . under FOIA [E]xemptions

3, 6, 7(C) and 7(E)”). 3

3. Exemption 7

a. Law Enforcement Records

Exemption 7 protects from disclosure “records or information compiled for law

enforcement purposes,” but only to the extent that disclosure of such records would cause an

enumerated harm. See 5 U.S.C. § 552(b)(7); FBI v. Abramson, 456 U.S. 615, 622 (1982). “To

show that the disputed documents were compiled for law enforcement purposes, the [agency] need

only establish a rational nexus between the investigation and one of the agency’s law enforcement

duties and a connection between an individual or incident and a possible security risk or violation

of federal law.” Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011) (internal quotation marks and

citations omitted).

All of the records deemed responsive to plaintiff’s FOIA request were located in his A-

File, that is, “the official government record” of plaintiff’s “pass[age] through the U.S.

immigration and inspection process.” First Eggleston Decl. ¶ 11 n.3. “Although USCIS is the

official custodian of all A-Files,” the files “are shared with [ICE] and U.S. Customs and Border

Protection, all of which create and contribute documents to A-Files.” Id. ICE is described as “the

largest investigative arm of [the U.S. Department of Homeland Security] and the second largest

3
Even if plaintiff had not conceded the matter, the Court finds that ICE properly withheld this
third-party information. Based on the Court’s review of ICE’s Vaughn Index, Exemption 6 is
invoked in conjunction with Exemption 7(C) in each instance, and for the reasons discussed below,
this same information is protected under Exemption 7(C). See Simon v. Dep’t of Justice, 980 F.2d
782, 785 (D.C. Cir. 1994).
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federal law enforcement force in the nation.” Piniero Decl. ¶ 21. Its agents and employees

“prepared and compiled detention[] and removal records memorializing the steps taken in the

removal proceedings of the Plaintiff . . . for the law enforcement purpose of detention and removal

of criminal aliens.” Id.

Plaintiff argues that USCIS and ICE “have ‘mixed’ function[s], encompassing both

administrative and law enforcement functions.” Pl.’s Opp’n at 23. He asserts that the relevant

records came about because of “the breach of promise dating back [to] August 2001,” and that this

alleged “illegal activity by ICE cannot . . . constitute ‘law enforcement’ for purposes of Exemption

7.” Id. Plaintiff fails to support these assertions with any evidence in the record of this case, and

thus does not rebut ICE’s showing that the relevant records “were compiled for the . . . purpose of

detention and removal of criminal aliens.” Piniero Decl. ¶ 21. As have others, see, e.g., Gosen v.

U.S. Citizenship & Immigration Servs., 75 F. Supp. 3d 279, 288 (D.D.C. 2014) (recognizing

records concerning the enforcement of a statute or regulation within USCIS’s authority, whether

for adjudication or enforcement, as law enforcement records for purposes of Exemption 7), this

Court concludes that the responsive records, all of which are maintained in plaintiff’s A-File, were

compiled for law enforcement purposes. But that is only part of the inquiry.

b. Exemption 7(C)

Exemption 7(C) protects from disclosure information found in law enforcement records

that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5

U.S.C. § 552 (b)(7)(C). In determining whether this exemption applies to particular material, the

Court must balance the interest in privacy of individuals mentioned in the records against the

public interest in disclosure. See Am. Civil Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1, 6

(D.C. Cir. 2011) (“In deciding whether the release of particular information constitutes an

10
unwarranted invasion of privacy under Exemption 7(C), we must balance the public interest in

disclosure against the [privacy] interest Congress intended the Exemption to protect.”) (internal

quotation marks and citation omitted); Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C.

Cir. 2007). The privacy interest at stake belongs to the individual, not the government agency, see

U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763-65 (1989),

and “individuals have a strong interest in not being associated unwarrantedly with alleged criminal

activity.” Stern v. FBI, 737 F.2d 84, 91-92 (D.C. Cir. 1984). The D.C. Circuit has held

“categorically that, unless access to the names and addresses of private individuals appearing in

files within the ambit of Exemption 7(C) is necessary in order to confirm or refute compelling

evidence that the agency is engaged in illegal activity, such information is exempt from

disclosure.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991).

USCIS withholds under Exemption 7(C) “information relating to third-party individuals”

such as “names, addresses, identification numbers, telephone numbers, fax numbers, [and] various

other [information] that [is] considered personal.” Defs.’ Renewed Mem., Decl. of Jill A.

Eggleston (“Second Eggleston Decl.”) ¶ 12. For example, USCIS withholds from an Immigration

Detainer “the names, direct phone numbers, and fax numbers of the INS Records Custodian and

INS Immigration Agent [who] handled [p]laintiff’s case.” Second Eggleston Decl., Vaughn Index

at 2 (Bates Number 57). Similarly, ICE “withhold[s] the phone numbers, email addresses, names,

signatures, and initials of . . . INS agents and officers, ICE agents and officers, attorneys,

government personnel, alien and third party individuals.” Piniero Decl. ¶ 23. For example, ICE

redacts “the names, email addresses and phone numbers of INS Agents, ICE Agents, Deportation

Officers, governmental attorneys and government employees who performed administrative,

clerical, or support functions in requesting, signing or approving documents contained within

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Plaintiff’s Alien File.” Id. It also redacts “the names and phone numbers of Office [of] Chief

Counsel employees and employees of [the] State of California Department of Corrections who

performed administrative, clerical support or legal actions.” Id. ¶ 24.

Although plaintiff challenges defendants’ assertion that the A-File records were compiled

for law enforcement purposes, see Pl.’s Opp’n at 21-22, he does not oppose defendants’ decision

to redact identifying information about the third parties mentioned in the responsive records. As

to this ground for withholding information, the Court will grant the defendants’ motion as

conceded. See, e.g., Neuman v. United States, 70 F. Supp. 3d 416, 422-23 (D.D.C. 2014). But

even if plaintiff had not conceded the matter, the Court finds that, based on defendants’ supporting

declarations, the decision to withhold this third-party information is proper. See, e.g., Higgins v.

U.S. Dep’t of Justice, 919 F. Supp. 2d 131, 148-49 (D.D.C. 2013) (withholding names of Secret

Service personnel and law enforcement personnel from other agencies); Brown v. FBI, 873 F.

Supp. 2d 388, 405 (D.D.C. 2012) (withholding names and telephone numbers of government

employees and other third parties).

c. Exemption 7(E)

Exemption 7(E) applies to law enforcement information that “would disclose techniques

and procedures for law enforcement investigations or prosecutions, or would disclose guidelines

for law enforcement investigations or prosecutions if such disclosure could reasonably be expected

to risk circumvention of the law[.]” 5 U.S.C. § 552(b)(7)(E). “Exemption 7(E) sets a relatively

low bar for the agency to justify withholding: [r]ather than requiring a highly specific burden of

showing how the law will be circumvented, this exemption only requires that the agency

demonstrate logically how the release of the requested information might create a risk of

circumvention of the law.” Blackwell, 646 F.3d at 42 (quoting Mayer Brown LLP v. IRS, 562 F.3d

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1190, 1194 (D.C. Cir. 2009)) (internal quotation marks omitted). “[I]nternal agency materials

relating to guidelines, techniques, sources, and procedures for law enforcement investigations and

prosecutions, even when the materials have not been compiled in the course of a specific

investigation” may be protected under Exemption 7(E), Tax Analysts v. IRS, 294 F.3d 71, 79 (D.C.

Cir. 2002) (citation omitted), and even if the documents “are not ‘how-to’ manuals for law-

breakers,” Mayer Brown, 562 F.3d at 1193.

“The types of documents and/or information [USCIS has] withheld [under Exemption

7(E)] could consist of law enforcement systems checks, manuals, checkpoint locations,

surveillance techniques, and various other documents.” Second Eggleston Decl. ¶ 12. For

example, USCIS withholds in full a “screenshot from the Interagency Border Inspection System

(IBIS) database,” id., Vaughn Index at 4 (Bates Number 244), which is used to “keep[] track of

information and records [regarding] wanted persons, stolen vehicles, vessels or firearms, license

information, criminal histories, and previous Federal inspections,” id., Vaughn Index at 5.

USCIS’s declarant further explains:

Exemption [7(E)] was applied to withhold the results of background
checks related to the Plaintiff as well as information related to
Plaintiff’s incarceration, which related to the INS investigation and
determination of whether Plaintiff was subject to removal . . . . This
information constitutes guidelines and procedures for the
enforcement of certain immigration and national security laws and
directives. The disclosure of this information would reveal
guidelines and procedures for the enforcement of certain
immigration and national security laws and directives, and could
reasonably be expected to risk circumvention of law and render the
relevant guidelines useless.
Id., Vaughn Index at 5-6; see also id., Vaughn Index at 18 (Bates Numbers 993 and 1006). For

these same reasons, USCIS withholds the results of background checks related to plaintiff in

printouts from the Central Index System (CIS) database, see id., Vaughn Index at 19-20 (Bates

Number 1140), 22-23 (Bates Number 2379), a system containing “information on the status of all

13
applicants[] seeking immigration benefits [including] lawful permanent residents, naturalized

citizens, U.S. border crossers, [and] aliens[,]” id., Vaughn Index at 19-20 (Bates Number 1140).

“Information contained in CIS is used for immigration benefit determination[s,] for immigration

law enforcement operations” by USCIS, ICE, and U.S. Customs and Border Protection, and for

“benefit bestowing programs” administered by federal, state and local entities. Id., Vaughn Index

at 20.

ICE, too, applies Exemption 7(E) “to protect investigative techniques and law enforcement

procedures” including:

escort recommendations, custody recommendations, external and
internal system identification numbers, . . . other law enforcement
agency database case numbers[] or identifiers, enforcement
operation names, means of access to intra-agency databases [such
as] case file numbers, event numbers, internal codes, computer
function commands, identification numbers, and other law
enforcement codes and numeric references
Piniero Decl. ¶ 26; see, e.g., id., Vaughn Index at 3 (withholding “internal identifying numbers,

computer codes, and computer commands” from printout of ICE detention information), and 8

(withholding details regarding custody determination from a worksheet used to rate “factors such

as severity of criminal convictions, immigration violation history, and special management

concerns”). For example, ICE withholds “database codes, case numbers, and numeric references

. . . from TECS,” a system which is a means of communication between ICE and other federal law

enforcement agencies. Id. ¶ 27. TECS database codes serve two purposes: “indexing, storing,

locating and retrieving information,” and describing an investigation, such that the codes

themselves “could identify the type and location of the case, the scope and size of the investigation,

. . . type of activity under investigation, and location of investigation efforts.” Id. ¶ 28. The

declarant explains that disclosure of this information betrays the scope of the investigation and

offers a “person seeking improper access to law enforcement data [a means] to decipher . . . the

14
codes, navigate the law enforcement system and compromise the integrity of the data either by

deleting or altering information.” Id. Further, the declarant states, because of “[t]he quality and

quantity of information contained in these records,” its disclosure “could impede ongoing

investigations.” Id.

ICE also applies Exemption 7(E) to “techniques involv[ing] cooperative arrangements

between ICE and other agencies and inter-agency communications prompting specific actions on

the part of agency employees.” Id. ¶ 29. If this information were disclosed, the declarant explains,

future investigations could be “adversely affect[ed] . . . by giving potential subjects of

investigations the ability to anticipate the circumstances under which such techniques could be

employed . . . and identify such techniques as they [are] being employed in order to either obstruct

the investigation or evade detection from law enforcement officials.” Id.

As was the case with Exemption 7(C), plaintiff challenges whether the responsive records

were compiled for law enforcement purposes, see Pl.’s Opp’n at 22-24, but does not challenge

application of Exemption 7(E) specifically. See also Mezerhane de Schnapp v. U.S. Citizenship

& Immigration Servs., 67 F. Supp. 3d 95, 101 (D.D.C. 2014) (records of USCIS queries of the

Interagency Border Inspection System properly withheld); Abdelfattah v. U.S. Immigration &

Customs Enforcement, 851 F. Supp. 2d 141, 145 (D.D.C. 2012) (program codes, investigative

notes, and internal instructions properly withheld); Techserve Alliance v. Napolitano, 803 F. Supp.

2d 16, 28–29 (D.D.C. 2011) (noting D.C. Circuit precedent “that an agency may withhold

information from disclosure where releasing such information would provide insight into its

investigatory or procedural techniques”). Here too then, the Court treats defendants’ arguments

with respect to Exemption 7(E) as conceded.

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C. Segregability

If a record contains some information that is exempt from disclosure, any reasonably

segregable information not exempt from disclosure must be released after deleting the exempt

portions, unless the non-exempt portions are inextricably intertwined with exempt portions. 5

U.S.C. § 552(b); see Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022,

1027 (D.C. Cir. 1999). The Court errs if it “simply approve[s] the withholding of an entire

document without entering a finding on segregability, or the lack thereof.” Powell v. U.S. Bureau

of Prisons, 927 F.2d 1239, 1242 n.4 (D.C. Cir. 1991) (quoting Church of Scientology of Cal. v.

U.S. Dep’t of the Army, 611 F.2d 738, 744 (9th Cir. 1979)).

Plaintiff argues that neither defendant has shown why information in the documents

withheld in full “cannot be segregated and additional portions disclosed.” Pl.’s Opp’n at 15. But

USCIS’s declarant avers that “[a]ll of the documents withheld [in full or in part] have been

carefully reviewed in an attempt to identify reasonably segregable non-exempt information,” and

it was determined “that no further segregation of meaningful information . . . can be done without

disclosing information warranting protection under the law.” Second Eggleston Decl. ¶ 18.

Similarly, ICE’s declarant avers that he “reviewed each record line-by-line to identify information

exempt from disclosure or for which a discretionary waiver of exemption could be applied.”

Piniero Decl. ¶ 31. Based on this review, he states that “[w]ith respect to the records that were

released in part, all information not exempted from disclosure pursuant to the FOIA exemptions

specified . . . was correctly segregated and non-exempt portions were released.” Piniero Decl. ¶

32. The Court notes that only a small percentage of the total number of responsive records was

withheld in full, and that the record reveals a diligent effort on the part of the defendants to redact

exempt material while releasing the rest. In the absence of any grounds to dispute the declarants’

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assertions concerning the remaining records, the Court concludes that defendants have released all

reasonably segregable information.

III. CONCLUSION

Defendants have demonstrated that there remains no genuine issue in dispute as to their

compliance with the FOIA and that they are entitled to judgment in their favor. Accordingly,

Defendants’ Renewed Motion for Summary Judgment will be granted and plaintiff’s cross-motion

will be denied. An Order accompanies this Memorandum Opinion.

DATE: September 23, 2015 /s/
AMY BERMAN JACKSON
United States District Judge

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