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National Immigrant Justice Center v. United States Department of Justice

United States District Court, N.D. Illinois, Eastern Division

March 27, 2018




         This matter concerns a Freedom of Information Act (“FOIA”) request related to eleven immigration matters decided by the United States Attorney General. Plaintiff National Immigrant Justice Center (“NIJC”), a non-profit organization that provides immigration assistance, deportation defense, and asylum representation to low-income immigrants, submitted the FOIA request to Defendant Department of Justice (“DOJ”) and received a number of documents in response. But many more documents were withheld as privileged. Presently before the Court are the parties' cross-motions for summary judgment. For the reasons stated below, DOJ's motion for summary judgment (Dkt. No. 61) and NIJC's motion for summary judgment (Dkt. No. 69) are both granted in part and denied in part.


         Immigrants subject to removal generally go through the following process. First, the immigrant's case is heard by an immigration judge. See 8 C.F.R. § 1003.14. Immigration judges exercise the powers and duties delegated to them by the Attorney General. Id. § 1003.10(b). Decisions by immigration judges are subject to review by the Board of Immigration Appeals (“BIA”). Id. § 1003.10(c).The BIA consists of attorneys appointed by the Attorney General to act as her delegates. Id. § 1003.1(a)(1). Both immigration judges and the BIA are employed by the Executive Office of Immigration Review, which is within DOJ. (Def.'s Resp. to Pl.'s 56.1 Stmt. of Facts (“DRPSF”) ¶ 6, Dkt. No. 81.) The Department of Homeland Security (“DHS”) represents the government's interests in removal proceedings before immigration judges and the BIA.[1] See 6 U.S.C. § 251.

         The Attorney General has the power to review any BIA case she chooses as well as those the BIA refers to her for decision. See 8 C.F.R. § 1003.1(h)(1). Besides a mandate that the Attorney General's decision be in writing, there are no procedural requirements for the Attorney General's decision-making process. Id.; see also Nani v. Brownell, 153 F.Supp. 679, 680 (D.D.C 1957) (holding that, pursuant to 8 C.F.R. § 1003.1, Attorney General is not required to give notice to the immigrant when a case is referred to her for review). The Attorney General's decisions in removal matters are binding and precedential. 8 C.F.R. § 1003.1(g). Immigrants may seek review of final BIA or Attorney General decisions in the appropriate federal court of appeals, 8 U.S.C. § 1252(a)(1) & (5), where the Office of Immigration Litigation (“OIL”) defends the BIA's or the Attorney General's decision. See 28 C.F.R. §§ 0.45(k), 0.20(a). If the decision gets appealed to the U.S. Supreme Court, the Office of the Solicitor General represents the government. See 28 U.S.C. § 1254.

         To gain insight into the policies and procedures used by the Attorney General when reviewing removal cases, NIJC filed a FOIA request on December 3, 2010 seeking production of all of the Attorney General's communications related to eleven contested immigration decisions issued by the Attorney General. (Pl.'s Resp. to Def.'s 56.1 Stmt. of Facts (“PRDSF”) ¶ 1, Dkt. No. 71.) DOJ's Office of Information Policy (“OIP”) received NIJC's request on December 22, 2010, and acknowledged receipt of the request by letter dated January 21, 2011. (Id. ¶¶ 2, 3.) Over the course of the following year, OIP identified 5, 269 records responsive to NIJC's request, of which 989 were released to NIJC. (Id. ¶¶ 17, 18.) The documents that were not released were withheld pursuant to Exemptions 5 and 6 of FOIA. (Id. ¶¶ 6-17.)

         On February 21, 2013, NIJC sent a second FOIA request seeking Office of Legal Counsel (“OLC”) communications related to the same eleven immigrations decisions issued by the Attorney General. (Id. ¶ 19.) By January 30, 2015, OIP released several hundred pages of communications, with excisions made and documents withheld pursuant to Exemptions 5 and 6 of FOIA. (Id. ¶¶ 25, 26.)

         NIJC then filed this lawsuit on June 15, 2012, alleging that DOJ violated FOIA by unlawfully withholding, in whole or in part, non-exempt documents responsive to their requests. After the complaint was filed, the parties attempted to work out their dispute, and DOJ produced a number of documents. But the parties were not able to resolve their differences completely, and thus on June 12, 2014, NIJC filed an amended complaint, again seeking an order requiring DOJ's production of responsive records. Eventually, DOJ filed its motion for summary judgment (Dkt. No. 62), in which it argues that it fully complied with FOIA and has released all non-exempt records responsive to NIJC's two requests. To support its motion, DOJ has submitted two Vaughn indices, which are “comprehensive listing[s] of each withheld document cross-referenced with the FOIA exemption that the Government asserts is applicable.” Solar Sources, Inc. v. United States, 142 F.3d 1033, 1036 n.3 (7th Cir. 1998). One index relates to the first FOIA request regarding the Attorney General's communications (Def.'s Mot. for Summ. J. Ex. P, Dkt. No. 62-1), and the other relates to the second FOIA request regarding OLC communications (Id., Dkt. No. 62-2.) With respect to the first FOIA request, DOJ also has submitted a declaration from Laurie A. Day, Chief of Initial Request Staff at DOJ OIP. (Id., Dkt. No. 62-1.) With respect to the second, the OLC request, DOJ has submitted a declaration from Paul P. Colborn, Special Counsel in OLC. (Id., Dkt. No. 62-2.)

         In response to DOJ's motion, NIJC has filed a cross-motion for summary judgment, arguing that DOJ has improperly applied Exemption 5 to documents that should be released. (Dkt. No. 70.) NIJC makes two arguments: (1) DOJ improperly withheld documents as privileged that are actually ex parte communications in connection with contested proceedings, and therefore not protected; and (2) DOJ's Vaughn index does not provide sufficient detail regarding the contents of documents withheld pursuant to the deliberative process privilege.


         Congress enacted FOIA “to open up the workings of government to public scrutiny through the disclosure of government records.” Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984) (internal quotation marks omitted). When a request under FOIA is made, the government may withhold a document only if it falls within one of nine statutory exemptions. 5 U.S.C. § 552(a)(4)(B). “Congress created these exemptions because it realized that legitimate governmental and private interests could be harmed by release of certain types of information.” FBI v. Abramson, 456 U.S. 615, 621 (1982). Because disclosure is “the dominant objective of the FOIA, ” the Court construes “FOIA exemptions narrowly in favor of disclosure.” Patterson v. I.R.S., 56 F.3d 832, 835 (7th Cir. 1995) (internal quotation marks omitted). Consequently, the government has the burden of justifying its decision to withhold requested documents. Id.; see also 5 U.S.C. § 552(a)(4)(B) (“the burden is on the agency to sustain its action”). The Court may grant summary judgment in favor of the government in a FOIA case only if the government provides “affidavits [that] describe the documents withheld and the justifications for nondisclosure in enough detail and with sufficient specificity to demonstrate that material withheld is logically within the domain of the exemption claimed.” Patterson, 56 F.3d at 836 (quoting PHE, Inc. v. U.S. Dep't of Justice, 983 F.2d 248, 250 (D.C. Cir. 1993)).

         Here, DOJ relies on Exemption 5 of FOIA to support withholding the requested documents.[2] That Exemption allows the government to withhold “inter-agency or intra-agency memorandums 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. § 522(b)(5). “Exemption 5 incorporates the privileges which the Government enjoys under the relevant statutory and case law in the pretrial discovery context.” Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184 (1975). One such privilege that Exemption 5 incorporates is the deliberative process privilege, which protects government documents reflecting the deliberative or policy-making processes. Enviro Tech Int'l, Inc. v. U.S. E.P.A., 371 F.3d 370, 374 (7th Cir. 2004). Exemption 5 also incorporates the attorney-client privilege and the attorney work-product protection. Rockwell Intern. Corp. v. DOJ, 235 F.3d 598, 601 (D.C. Cir. 2001).

         I. Communications with OSG and OIL

         DOJ contends that all of the withheld documents are protected by the deliberative process privilege, and therefore were properly withheld under Exemption 5. NIJC counters that the records DOJ withheld pursuant to Exemption 5 constitute ex parte communications and are therefore not privileged. Specifically, NIJC contends that ...

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