Kapende v. United States Department of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
KAPS KAPENDE, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 18-1238 (ABJ)
)
UNITED STATES DEPARTMENT )
OF HOMELAND SECURITY, )
)
Defendant. )
____________________________________)

MEMORANDUM OPINION

Plaintiff Catholic Charities submitted Freedom of Information Act (“FOIA”) requests to

the Department of Homeland Security (“DHS”) seeking documents concerning asylum

applications submitted by plaintiffs Kaps Kapende and Annie Kaseka. Plaintiffs demand that the

agency release, in full, a three-page “Assessment to Refer” memorandum concerning plaintiff

Kapende and a four-page “Assessment to Grant Asylum” memorandum concerning plaintiff

Kaseka, which the agency is partially withholding pursuant to FOIA Exemption 5. Plaintiffs’

suit not only seeks the release of those documents, but also an order “enjoin[ing] defendant from

failing to disclose entire Assessments in the future.” Compl. [Dkt. # 1] at 19. Pending before

the Court are the parties’ motions for summary judgment. For the reasons that follow, the Court

will deny plaintiffs’ motion and grant defendant’s motion.

BACKGROUND

The following facts are not in dispute. Plaintiff Kapende was born in the Democratic

Republic of the Congo. Compl. ¶ 93. After arriving to the United States he applied for asylum

and was interviewed by an asylum officer at the Arlington, Virginia Asylum Office. Id. That
asylum officer drafted a document known as an “Assessment to Refer,” which generally contains

“facts, reasons, citations to authorit[ies], and conclusions” for denying an asylum application. Id.

¶¶ 34–35. This document is not given to the applicant. Id. ¶ 36. When an asylum officer denies

an application, the case is then referred to an immigration judge for adjudication in removal

proceedings. See 8 C.F.R. § 208.14(c)(1).

Plaintiff Kaseka was also born in the Democratic Republic of the Congo. Compl. ¶ 97.

After arriving to the United States she applied for asylum and was interviewed by an asylum

officer who granted her asylum. Id. The officer drafted a document known as an “Assessment

to Grant Asylum,” which generally contains “facts, reasons, citations to authorit[ies], and

conclusions.” Id. ¶ 32. This document is also not given to the applicant. Id. ¶ 33.

On or about July 12, 2017, plaintiff Catholic Charities submitted a FOIA request to the

United States Citizenship and Immigration Services (“USCIS”), a component of DHS, seeking

the following records concerning plaintiff Kapende:

• the notes of the asylum officer;
• the assessment written by the asylum officer;
• any material used by the asylum officer, but not given to him by the
individual named above

Ex. 8 to Compl. [Dkt. # 1-9] (“Kapende FOIA Request”) at 2. 1 USCIS responded to the FOIA

request on December 31, 2017, and released to plaintiff Catholic Charities 145 pages in their

entirety, 26 pages in part, and withheld 12 pages in full pursuant to FOIA Exemption 5. Id. at 3.

Catholic Charities appealed, and the agency released an additional three pages in part, and one

page in full, including portions of the asylum officer’s Assessment to Refer which it initially

withheld in full. Id. at 4; Decl. of Jill A. Eggleston [Dkt. # 13-1] (“Eggleston Decl.”) ¶ 5.

1 Both individual plaintiffs signed waivers allowing Catholic Charities to receive their
asylum records. See Kapende FOIA Request at 2; Ex. 9 to Compl. [Dkt. # 1-10] (“Kaseka FOIA
Request”) at 2.
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 Additionally, plaintiff Catholic Charities filed a FOIA request on or about September 13,

2017, seeking the following documents concerning plaintiff Kaseka:

• a copy of the notes of the asylum officer;
• a copy of the assessment written by the Asylum Officer;
• a copy of the evidence relied upon by the Asylum Officer, not supplied
by the applicant;
• a copy of everything in her file

Kaseka FOIA Request at 2. In response, the agency released to plaintiff Catholic Charities 378

pages in their entirety, 25 pages in part, and it withheld 6 pages in full pursuant to FOIA

Exemption 5. Id. at 3; Eggleston Decl. ¶ 6. Catholic Charities administratively appealed, and

the agency subsequently released an additional two pages in part, including portions of the

Assessment to Grant Asylum which it initially withheld in full. Kaseka FOIA Request at 4;

Eggleston Decl. ¶ 6.

Plaintiff Kapende “wants to know why the asylum officer rejected his application,”

because “he fears defendant [DHS] will use the document against him” at his upcoming

immigration court hearing to deport him. Compl. ¶¶ 4, 8. Although plaintiff Kaseka was

granted asylum, she also “wants to know what the asylum officer wrote about her.” Id. ¶ 9.

Plaintiff Catholic Charities states that these records will be useful in their advocacy efforts

representing asylum seekers because it will give the organization insights into “what asylum

officers are thinking[:] [w]hat is important to them; what is not important; what authorities are

deemed persuasive; what authorities are worthless; what leads to the granting of asylum

applications; what leads to their rejection.” Id. ¶ 10a-2.

On August 8, 2018, plaintiffs moved for summary judgment, Pls.’ Mot. for Summ. J.

[Dkt. # 10] (“Pls.’ Mot.”), and on September 20, 2018, defendant opposed that motion and cross-

moved for summary judgment, arguing that the partial withholdings of the assessments are

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justified under Exemption 5’s deliberative process privilege. See generally Def.’s Cross-Mot.

for Summ. J. [Dkt. # 13] (“Def.’s Cross-Mot.”). Those motions are fully briefed and ripe for

decision. See Pls.’ Reply to DHS Opp. to Pls.’ Mot. [Dkt. # 14]; Pls.’ Opp. to DHS Cross-Mot.

for Summ. J. [Dkt. # 15] (“Pls.’ Cross-Opp.”); Def.’s Reply in Supp. of Cross-Mot. for Summ. J.

[Dkt. # 19].

STANDARD OF REVIEW

In a FOIA case, the district court reviews the agency’s decisions de novo and “the burden

is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); Military Audit Project v. Casey,

656 F.2d 724, 738 (D.C. Cir. 1981). “[T]he vast majority of FOIA cases can be resolved on

summary judgment.” Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).

Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The party seeking summary judgment “bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat

summary judgment, the non-moving party must “designate specific facts showing that there is a

genuine issue for trial.” Id. at 324 (internal quotation marks omitted).

The mere existence of a factual dispute is insufficient to preclude summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a

reasonable fact-finder could find for the non-moving party; a fact is “material” only if it is

capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d

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1236, 1241 (D.C. Cir. 1987). In assessing a party’s motion, the court must “view the facts and

draw reasonable inferences ‘in the light most favorable to the party opposing the summary

judgment motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting

United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).

“Summary judgment may be granted on the basis of agency affidavits” in FOIA cases,

when those affidavits “contain reasonable specificity of detail rather than merely conclusory

statements,” and when “they are not called into question by contradictory evidence in the record

or by evidence of agency bad faith.” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215

(D.C. Cir. 2013), quoting Consumer Fed’n of Am. v. Dep’t of Agric., 455 F.3d 283, 287 (D.C.

Cir. 2006). However, a plaintiff cannot rebut the good faith presumption afforded to an agency’s

supporting affidavits through “purely speculative claims about the existence and discoverability

of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991),

quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981).

ANALYSIS

FOIA Exemption 5

FOIA Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums

or letters which would not be available by law to a party . . . in litigation with the agency.” 5

U.S.C. § 552(b)(5). A document may be properly withheld under Exemption 5 only if (1) its

source is a government agency, and (2) it falls “within the ambit of a privilege against discovery

under judicial standards that would govern litigation against the agency that holds it.” U.S. Dep’t

of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). The exemption

encompasses the deliberative process privilege which “covers documents reflecting advisory

opinions, recommendations, and deliberations that are part of a process by which Government

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decisions and policies are formulated.” Id., citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132,

150 (1975). Its purpose “is to enhance ‘the quality of agency decisions’ by protecting open and

frank discussion among those who make them within the Government.” Id. at 8–9 (citations

omitted), quoting Sears, 421 U.S. at 151.

“The deliberative process privilege protects agency documents that are both predecisional

and deliberative.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006), citing

Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). “A document

is ‘predecisional’ if it precedes, in temporal sequence, the ‘decision’ to which it relates.” Abtew

v. DHS, 808 F.3d 895, 898 (D.C. Cir. 2015), quoting Senate of the Commonwealth of Puerto

Rico v. DOJ, 823 F.2d 574, 585 (D.C. Cir. 1987). “And a document is deliberative if it is ‘a part

of the agency give-and-take – of the deliberative process – by which the decision itself is

made.’” Id. at 899, quoting Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975).

The agency’s declarant avers that the withheld information is protected by Exemption 5

because the assessments are “intra-agency, predecisional, [and] deliberative memos prepared by

Asylum officers subject to approval by a [Supervisory Asylum Officer].” Eggleston Decl. ¶ 7.

According to the agency, the assessments “were drafted by asylum officers in order to explain

the basis for their recommendations to their [Supervisory Asylum Officer].” Id. ¶ 10.

The agency declaration outlines the internal deliberative processes related to each type of

assessment.

The Assessment to Refer Memo serves as a recommendation by the
interviewing asylum officer for USCIS’s final decision for an asylum
applicant. Once the Assessment to Refer Memo is completed, it is
reviewed for legal sufficiency by a [Supervisory Asylum Officer]. If the
asylum officer’s reasoning and recommendation is accepted by the
[Supervisory Asylum Officer], the Assessment to Refer Memo is initialed
by the [Supervisory Asylum Officer] and placed in the applicant's file (the
“A-file”). Once completed, an agency decision, known as a Referral

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 Notice, is issued by the USCIS Asylum office to the asylum applicant and
to his or her counsel. The applicant’s A-file is then forwarded to
Immigration and Customs Enforcement (“ICE”) for docketing and
litigation. Upon referral to ICE, the Referral Notices are issued by the
USCIS Asylum Office to asylum applicants (and/or their attorneys)
subsequent to the completion of the asylum officer’s Assessments to Refer
and informs the applicant that he/she is being referred to an immigration
judge for a final decision and explains, in narrative form, the basis for the
referral.

Eggleston Decl. ¶ 8. Additionally, the agency declarant confirms that in plaintiff Kapende’s

particular asylum case, the Assessment to Refer Memo was “prepared by an Asylum officer in a

narrative format, explained the officer’s reasons for recommending that asylum be denied,

discussed legal justifications for a denial determination, and included other reasons to refer the

case to ICE.” Id.

The agency describes the internal processes associated with the Assessment to Grant

Asylum memo as follows:

Once the Assessment to Grant Asylum Memo is completed, it is reviewed
for legal sufficiency by a [Supervisory Asylum Officer]. If the
recommendation is accepted, the memo is initialed by the [Supervisory
Asylum Officer] and placed in the applicant’s A-file. Once completed, an
agency decision, known as an Asylum Approval memo, is issued by the
USCIS Asylum office to the asylum applicant and to his or her counsel.
This deliberative decision making and documenting process within the
Assessment to Grant Asylum Memo is an essential part of the USCIS
deliberative process that may lead to the ultimate determination to approve
an alien’s application for asylum, and refer the alien for next steps in the
immigration process.

Eggleston Decl. ¶ 9. In plaintiff Kaseka’s asylum case, the agency confirms that the

“Assessment to Grant Asylum Memo was prepared by an Asylum officer in a narrative format,

explained the officer’s reasons for recommending that asylum be granted, discussed legal

justifications for an approval determination, and included other reasons to grant the asylum

application.” Id.

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 Finally, the agency explains the harm that would result from disclosure of the withheld

information. The agency’s declarant asserts that “[p]ublic disclosure of the withheld information

will lead to asylum applicants tailoring their applications and interview responses to what they

believe will tip an asylum officer’s decision in their favor.” Eggleston Decl. ¶ 10. According to

the agency, disclosure of the “asylum officer’s deliberative process will hinder the Agency’s

ability to make determinations solely on the merits of an asylum claim.” Id.

Based on its review of the agency’s declaration and the controlling legal authorities, the

Court finds that plaintiff Kapende’s Assessment to Refer and plaintiff Kaseka’s Assessment to

Grant Asylum are protected by the deliberative process privilege under Exemption 5.

Plaintiff Kapende’s Assessment to Refer is predecisional and deliberative. The

Assessment to Refer is predecisional because it was drafted by the interviewing asylum officer

before a decision was made; and it is also deliberative because “it was written as part of the

process by which the supervisor came to [his or her] final decision.” Abtew, 808 F.3d at 899.

Here, the assessment serves as a preliminary recommendation to a supervisor and it has no

“operative effect.” Id., quoting Sears, 421 U.S. at 160.

Plaintiffs insist that Kapende’s Assessment to Refer is the “final decision” and that it

“lost its status as a recommendation . . . after the supervisor initialed and approved the

document.” Pls.’ Mot. at 17. The D.C. Circuit rejected that same argument in Abtew, another

FOIA case in which a plaintiff sought a copy of his Assessment to Refer. 808 F.3d at 899.

There, the Court noted that the Referral Notice, not the Assessment to Refer, represented the

agency’s final decision. Id. And since the Referral Notice did not mention the asylum officer’s

preliminary assessment, there was no indication that it was expressly adopted or incorporated by

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reference in the final decision. Id. The Court explained that “initialing alone does not transform

the Assessment into the Department’s final decision.” Id. The Court added:

Initialing a memo may suggest approval of the memo’s bottom-line
recommendation, but it would be wrong and misleading to think that
initialing necessarily indicates adoption or approval of all of the memo’s
reasoning. See Afshar v. Dep’t of State, 702 F.2d 1125, 1143 n.22 (D.C.
Cir. 1983); see also Coastal States, 617 F.2d at 866 (deliberative process
privilege is designed “to protect against confusing the issues and
misleading the public by dissemination of documents suggesting reasons
and rationales for a course of action which were not in fact the ultimate
reasons for the agency’s action”).

Id. In this case, the agency’s declarant confirms that USCIS issued a Referral Notice after the

asylum officer drafted the Assessment to Refer, and that it was the Referral Notice that publicly

informed plaintiff Kapende of its final decision. Eggleston Decl. ¶ 8.

Plaintiffs insist that the “facts in this case are different from the facts in Abtew.” Pls.’

Mot. at 16. They contend that “DHS has changed its procedures” and re-state paragraphs 37, 39,

40, 40a, 40g, 53, and 54 of their original complaint in support of this position. Id. at 17–18. It is

unclear what “change” plaintiffs are referring to. The passages simply reiterate the argument

that the initialed assessment is a final decision, and that the Referral Notice is created by the

asylum officer using a computer that contains “boilerplate” language. Pls.’ Mot. at 18. Based

upon these vague and conclusory paragraphs, plaintiffs contend that they have presented

“evidence” that once the Assessment to Refer was initialed, “no other human did anything.” Id.

Plaintiffs’ bare recitation of the allegations in the complaint is not “evidence.” The two

declarations plaintiffs attach to their motion for summary judgment fail to address the basis for

their claim that “no other human did anything” after Kapende’s Assessment to Refer was

initialed. See Decl. of David L. Cleveland, Attach. A to Pls.’ Mot. [Dkt. # 10-2]; Decl. of David

L. Cleveland, Attach. B. to Pls.’ Mot. [Dkt. # 10-3]. Plaintiffs’ conclusory and unsupported

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allegations are insufficient to rebut the agency’s detailed declaration establishing that indeed

other human actions took place. See SafeCard Servs., 926 F.2d at 1200. As previously noted,

the agency subsequently issued a Referral Notice informing plaintiff of its final decision, and

even that did not mark the end of the process. See Eggleston Decl. ¶ 8. The case was then

referred to an immigration judge for a final decision. Id.

With regards to plaintiff Kaseka’s Assessment to Grant Asylum, the Court also finds that

the document is predecisional and deliberative. The Assessment to Grant Asylum, like the

Assessment to Refer, serves as a preliminary recommendation from the interviewing asylum

officer to the supervisor. See Eggleston Decl. ¶ 9. Because the Assessment to Grant Asylum is

drafted prior to the final decision and it is an essential tool of the agency’s decision-making

process, it plainly falls within the deliberative process privilege. See Abtew, 808 F.3d at 899.

The initialed Assessment to Grant Asylum is not the final decision. The agency informs the

applicant of its final decision by issuing a separate document known as an “Asylum Approval

Memo.” Eggleston Decl. ¶ 9. Plaintiffs have not put forth evidence that the asylum officer’s

preliminary assessment was expressly adopted or incorporated by reference in the Asylum

Approval Memo. See Abtew, 808 F.3d at 899.

Next, plaintiffs argue that the agency failed to carry its burden because it did not provide

justifications for how the agency would be harmed by disclosure as required by the FOIA

Improvement Act of 2016, 5 U.S.C. § 552(a)(8)(A)(i). Pls.’ Mot. at 18; Pls.’ Cross-Opp. at 2–4.

This is contrary to the record in this case. As noted, the agency provided a declaration

describing the harm that would result from the release of the withheld information. See

Eggleston Decl. ¶ 10. Plaintiffs’ conclusory statement that withheld information is “benign,”

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Pls.’ Cross-Opp. at 4, is insufficient to rebut the good faith presumption afforded to the agency.

See SafeCard Servs., 926 F.2d at 1200.

The Court also rejects plaintiffs’ argument that the agency issues a very similar type of

document, known as a Notice of Intent to Deny (“NOID”), to another category of asylum

applicants, and therefore no harm will result if plaintiff Kaseka’s Assessment to Grant Asylum is

released in its entirely. Pls.’ Mot. at 20. The Court is unmoved by plaintiffs’ argument because

they cite to no authority in support of their position and they concede that the documents issued

pertain to a separate category of asylum applicants. Id.

Based on its review of the agency’s declaration and controlling decisions, the Court finds

that the agency properly invoked Exemption 5 to withhold portions of plaintiffs’ assessments.

Segregability

Under FOIA, if a record contains information exempt from disclosure, any “reasonably

segregable,” non-exempt information must be disclosed after redaction of the exempt

information. 5 U.S.C. § 552(b). Non-exempt portions of records need not be disclosed if they

are “inextricably intertwined with exempt portions.” Mead Data Cent., Inc. v. U.S. Dep’t of Air

Force, 566 F.2d 242, 260 (D.C. Cir. 1977).

The agency released the following portions of the assessments: “the memo header

(which includes pertinent identification information), general facts of the case as provided by the

applicant, information about the applicant’s counsel, and general administrative facts (such as

when the application was filed, etc.).” Eggleston Decl. ¶ 7. The agency’s declarant avers that

“[a]fter carefully reviewing the [plaintiffs’ assessments], I have determined that no portion of the

withheld sections can be reasonably segregated and released without revealing the deliberative,

decision-making nature of these intra-agency documents.” Id. ¶ 11.

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 Accordingly, the Court finds that the government has met FOIA’s segregability

requirement.

Injunctive Relief

Because the Court finds that the agency properly withheld the information, it will also

deny plaintiffs’ request for an order enjoining the agency from “failing to disclose entire

Assessments in the future.” Compl. at 19.

CONCLUSION

For the aforementioned reasons, the Court hereby denies plaintiffs’ motion for summary

judgment, and grants defendant’s cross-motion for summary judgment. A separate order will

issue.

AMY BERMAN JACKSON
United States District Judge

DATE: March 26, 2019

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