Case Detail

FOIA Project Annotation: Faced with nearly the identical claims adjudicated several months ago by Judge John Bates, Judge Ketanji Brown Jackson has ruled that U.S. Citizenship and Immigration Services properly invoked Exemption 6 (invasion of privacy), Exemption 7(C) (invasion of privacy concerning law enforcement records) and Exemption 7(E) (investigative methods and techniques) to redact records concerning Nelson Mezerhane Gosen's asylum application, but because of the existence of evidence suggesting that certain records the agency claimed were protected by Exemption 5 (deliberative process privilege) were created after the agency granted Mezerhane Gosen asylum, she rejected those claims and encouraged the parties to either settle their differences or for the agency to file supplemental affidavits supporting its Exemption 5 claim. Mezerhane Gosen, who owned the Venezuelan television statio0n Globovision and was a critic of the current Venezuelan regime, applied, along with his immediate family, for political asylum. After waiting for three years, Mezerhane Gosen requested his Alien file. His daughter, whose asylum application was dependent on her father's application, also requested her Alien file separately. USCIS disclosed 500 pages, but withheld in full or in part 140 pages. Mezerhane Gosen appealed administratively and the agency partially released four documents that had previously been withheld entirely. Mezerhane Gosen then filed suit. However, Bates ruled on his daughter's suit first, finding the agency had supported the Exemption 7(C) and 7(E) claims but that the Exemption 5 claims remained unresolved. Finding that Bates' decision was persuasive, Jackson reached the same conclusion. Jackson found the agency had redacted only personally-identifying information, rejecting Mezerhane Gosen's contention that the redactions bore on the agency's misconduct in failing to notify him in 2010 that his asylum application had been granted, instead of waiting until 2013 when the agency officially notified him. Jackson pointed out that "the documents themselves simply do not shed any light on this matter�"Exemptions 6 and 7(C) have been used to redact only names and some identifying information, and nothing that could possibly help to prove or disprove USCIS's alleged misconduct." Mezerhane Gozen argued that because USCIS had published a great deal of material on the asylum adjudication process information about the process was already publicly known and did not qualify for Exemption 7(E) protection. But Jackson observed that "the mere fact that some information about the asylum process is available does not automatically prevent USCIS from withholding any information about the process." Like Bates, Jackson, after reviewing the records in camera, found that all the records withheld under Exemption 5 probably qualified as deliberate. But faced with nearly the same evidence presented to Bates�"that a 2010 entry in a USCIS database indicated that Mezerhane Gozen's asylum application had been granted as well as two occasions in 2013 when Mezerhane Gozen's son-in-law was told by immigration or customs officials that he should have applied for travel documentation available only for individuals' whose asylum applications had been granted�"Jackson pointed out that "although the documents withheld appear to be deliberative, Plaintiff has raised sufficient doubt about the timing of the asylum decision such that it cannot be established one way or the other, based on the current record, that the withheld documents are predecisional."
Issues: Exemption 7(E) - Unknown to public, Exemption 7(C) - Invasion of privacy concerning law enforcement records, Exemption 5 - Privileges - Deliberative process privilege - Predecisional

FOIA Project Annotation: In a case that hinged upon whether documents that qualified as deliberative were also truly predecisional, Judge John Bates has ruled that U.S. Citizenship and Immigration Services has satisfactorily explained that the disputed records were created before the agency's decision to grant asylum to Nelson Jose Mezerhane Gosen, his daughter Maria Andrea Mezerhane de Schnapp and their families. From the beginning of the litigation, the agency had insisted that its decision to grant asylum had not been made until November 2013 when the Mezerhane family received the official letter granting asylum. But because the Mezerhanes produced evidence that they were told by USCIS staff on several occasions that they had been granted asylum in 2010, Bates found the agency had not shown that the disputed documents were actually predecisional. This time, however, the agency provided Bates with an explanation that accounted for the difference in times. Bates noted that "it is clear that much of the process required to grant asylumâ€"not just a letter of notificationâ€"was not yet complete in September 2010. The vetting and security check process had yet to run its course. And many of the documents at issueâ€"which the Court has reviewed in cameraâ€"confirm that the internal vetting process was ongoing between 2010 and 2013. This vetting, a prerequisite for Headquarters review, was incomplete in 2010; the government, then, could not have made a truly final decision to grant the Mezerhanes asylum at that time." The agency concluded that the 2010 dates in several databases were the result of clerical error. Bates accepted that explanation, pointing out that "although this Court does not know for certain whether the database was a simple clerical error or a misguided employee decision, it is confident, given [the agency's supplemental declarations] that the 2010 entry did not reflect the final outcome of the official deliberative process required to grant asylum. Since that process was not completed until November 2013, when final Headquarters approval of asylum occurred, the documents are predecisional and protected under Exemption 5." Having reviewed the records in camera, Bates found that there was some factual material that could be disclosed. But he pointed out that "although the Court has highlighted several areas where there may be reasonably segregable material, it also recognizes that courts should give 'considerable deference' to an agency's judgment as to what constitutes" the agency's deliberative give and take. As a result, Bates indicated that "the Court will require the government to re-assess the remaining pages in dispute and disclose all reasonably segregable portions of non-exempt material."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional

Date Filed	Doc #	Docket Text
2013-07-16	1	COMPLAINT against CITIZENSHIP AND IMMIGRATION SERVICES ( Filing fee $ 400 receipt number 0090-3401664) filed by Nelson Jose Mezerhane Gosen.(Grossman, Sandra) (Entered: 07/16/2013)
2013-07-16	2	CIVIL COVER SHEET and Exhibits by Nelson Jose Mezerhane Gosen re 1 Complaint filed by Nelson Jose Mezerhane Gosen. Related document: 1 Complaint filed by Nelson Jose Mezerhane Gosen. (Attachments: # 1 Exhibit Exhibits)(Grossman, Sandra) (Entered: 07/16/2013)
2013-07-16		Case Assigned to Judge Ketanji Brown Jackson. (ls, ) (Entered: 07/17/2013)
2013-07-17	3	REQUEST FOR SUMMONS TO ISSUE by NELSON JOSE MEZERHANE GOSEN re 1 Complaint filed by NELSON JOSE MEZERHANE GOSEN. Related document: 1 Complaint filed by NELSON JOSE MEZERHANE GOSEN.(Grossman, Sandra) (Entered: 07/17/2013)
2013-07-18	4	Electronic Summons (1) Issued as to CITIZENSHIP AND IMMIGRATION SERVICES. (Attachments: # 1 Consent Forms)(rdj) (Entered: 07/18/2013)
2013-07-19	5	REQUEST FOR SUMMONS TO ISSUE by NELSON JOSE MEZERHANE GOSEN re 1 Complaint filed by NELSON JOSE MEZERHANE GOSEN. Related document: 1 Complaint filed by NELSON JOSE MEZERHANE GOSEN.(Grossman, Sandra) (Entered: 07/19/2013)
2013-07-19	6	REQUEST FOR SUMMONS TO ISSUE by NELSON JOSE MEZERHANE GOSEN re 1 Complaint filed by NELSON JOSE MEZERHANE GOSEN. Related document: 1 Complaint filed by NELSON JOSE MEZERHANE GOSEN.(Grossman, Sandra) (Entered: 07/19/2013)
2013-07-19	7	ELECTRONIC SUMMONS (2) Issued as to U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons)(ls, ) (Entered: 07/19/2013)
2013-07-26	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CITIZENSHIP AND IMMIGRATION SERVICES served on 7/25/2013 (Grossman, Sandra) (Entered: 07/26/2013)
2013-07-26	9	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/22/2013. Answer due for ALL FEDERAL DEFENDANTS by 8/21/2013. (Grossman, Sandra) (Entered: 07/26/2013)
2013-07-26	10	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 7/22/2013. (Grossman, Sandra) (Entered: 07/26/2013)
2013-08-13	11	Consent MOTION for Extension of Time to Respond to Plaintiff's Complaint by CITIZENSHIP AND IMMIGRATION SERVICES (Truong, John) (Entered: 08/13/2013)
2013-08-14		MINUTE ORDER granting 11 Consent Motion for Extension of Time. Defendant's Response to Plaintiff's Complaint is due by 9/20/2013. Signed by Judge Ketanji Brown Jackson on 8/14/2013. (lckbj1) (Entered: 08/14/2013)
2013-09-20	12	ANSWER to Complaint by CITIZENSHIP AND IMMIGRATION SERVICES.(Truong, John) (Entered: 09/20/2013)
2013-09-20		MINUTE ORDER. Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall promptly confer and file a joint proposed schedule for briefing or disclosure, by October 4, 2013. Signed by Judge Ketanji Brown Jackson on 09/20/2013. (lckbj1) (Entered: 09/20/2013)
2013-09-24		Set/Reset Deadlines: Joint proposed schedule for briefing or disclosure due by 10/4/2013. (gdf) (Entered: 09/24/2013)
2013-10-01	13	Unopposed MOTION to Stay in Light of Lapse of Appropriations by CITIZENSHIP AND IMMIGRATION SERVICES (Truong, John) (Entered: 10/01/2013)
2013-10-01		MINUTE ORDER granting 13 Unopposed Motion to Stay in light of lapse of appropriations. For good cause shown, it is hereby ORDERED that this case is STAYED. Counsel for Defendant shall notify the Court as soon as Congress has appropriated funds for the Department of Justice; at that point, the Court will enter an order resetting the applicable deadline, which will be extended day-for-day with the duration of the lapse in appropriations. Signed by Judge Ketanji Brown Jackson on 10/1/2013. (lckbj1) (Entered: 10/01/2013)
2013-10-21	14	NOTICE Restoration of Funds for the Federal Government and Joint Proposed Schedule by CITIZENSHIP AND IMMIGRATION SERVICES (Truong, John) (Entered: 10/21/2013)
2013-10-22	15	ORDER LIFTING STAY and adopting the parties' proposed briefing schedule. See attached order for details. Signed by Judge Ketanji Brown Jackson on 10/22/2013. (lckbj3) (Entered: 10/22/2013)
2013-11-22	16	Consent MOTION to Modify October 22, 2013 Scheduling Order (ECF No. 15) by CITIZENSHIP AND IMMIGRATION SERVICES (Truong, John) (Entered: 11/22/2013)
2013-11-26		MINUTE ORDER granting, for good cause shown, 16 Motion to Modify October 22, 2013 Scheduling Order. The deadlines set forth in the October 22, 2013 Scheduling Order are amended as follows: Defendant's Motion for Summary judgment due by 12/18/2013. Plaintiff's Opposition to Defendant's Motion and Cross Motion for Summary Judgment due by 1/8/2014. Defendant's Reply in support of its Motion and Opposition to Plaintiff's Cross Motion due by by 1/22/2014. Plainitff's Reply in support of its Cross Motion due by 2/3/2014. Signed by Judge Ketanji Brown Jackson on 11/26/2013. (lckbj1, ) (Entered: 11/26/2013)
2013-12-18	17	MOTION for Summary Judgment by CITIZENSHIP AND IMMIGRATION SERVICES (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Affidavit, # 4 Exhibit Gov Exh A-C, # 5 Exhibit Gov Exh D-F, # 6 Exhibit Gov Exh G-H, # 7 Exhibit Gov EXh I (Vaughn Index))(Truong, John) (Entered: 12/18/2013)
2014-01-08	18	Memorandum in opposition to re 17 MOTION for Summary Judgment and Cross-Motion for Summary Judgment filed by NELSON JOSE MEZERHANE GOSEN. (Attachments: # 1 Exhibit Pl. Exh. E through M, # 2 Statement of Facts, # 3 Text of Proposed Order)(Grossman, Sandra) (Entered: 01/08/2014)
2014-01-08		jf, ) (Entered: 01/08/2014)
2014-01-08	19	ENTERED IN ERROR.....Memorandum in opposition to re 17 MOTION for Summary Judgment filed by NELSON JOSE MEZERHANE GOSEN. (Attachments: # 1 Statement of Facts in Dispute, # 2 Text of Proposed Order)(Grossman, Sandra) Modified on 1/9/2014 (jf, ). (Entered: 01/08/2014)
2014-01-08	20	Cross MOTION for Summary Judgment by NELSON JOSE MEZERHANE GOSEN (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts Not in Dispute, # 3 Text of Proposed Order, # 4 Affidavit of Attorney Sandra Grossman, # 5 Exhibit E through M)(Grossman, Sandra) (Entered: 01/08/2014)
2014-01-09		NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 19 Memorandum in Opposition, was entered in error as a duplicate to 18 . (jf, ) (Entered: 01/09/2014)
2014-01-22	21	Consent MOTION to Modify November 26, 2013 Scheduling Order by CITIZENSHIP AND IMMIGRATION SERVICES (Truong, John) (Entered: 01/22/2014)
2014-01-23		MINUTE ORDER granting, for good cause shown, 21 Defendants Consent Motion to Modify November 26, 2013 Scheduling Order, nunc pro tunc to 1/22/2014. It is hereby ORDERED that the deadlines in this case are modified as follows: Defendants Reply in Support of its Motion for Summary Judgment and Opposition to Plaintiffs Cross Motion for Summary Judgment is due by 1/28/2014; Plaintiffs Reply in Support of its Cross Motion for Summary Judgment is due by 2/10/2014. Signed by Judge Ketanji Brown Jackson on 1/23/2014. (lckbj1) (Entered: 01/23/2014)
2014-01-23		Set/Reset Deadlines: Reply to Motion for Summary Judgment due by 1/28/2014. (gdf, ) (Entered: 01/23/2014)
2014-01-28	22	MOTION for Extension of Time to File Reply and Opposition to Plaintiff's Cross-Motion for Summary Judgment by CITIZENSHIP AND IMMIGRATION SERVICES (Truong, John) (Entered: 01/28/2014)
2014-01-28	23	Memorandum in opposition to re 22 MOTION for Extension of Time to File Reply and Opposition to Plaintiff's Cross-Motion for Summary Judgment filed by NELSON JOSE MEZERHANE GOSEN. (Grossman, Sandra) (Entered: 01/28/2014)
2014-01-29	24	REPLY to opposition to motion re 17 MOTION for Summary Judgment filed by CITIZENSHIP AND IMMIGRATION SERVICES. (Attachments: # 1 Affidavit of Varsenik Papazian, # 2 Exhibit (Reply) Gov Exh #1)(Truong, John) (Entered: 01/29/2014)
2014-01-29	25	Memorandum in opposition to re 20 Cross MOTION for Summary Judgment (See ECF No. 24 for Declaration and Exhibits) filed by CITIZENSHIP AND IMMIGRATION SERVICES. (Truong, John) (Entered: 01/29/2014)
2014-01-29		MINUTE ORDER granting, for good cause shown, 22 Motion for Extension of Time to File Reply and Opposition to Plaintiff's Cross-Motion for Summary Judgment, nunc pro tunc to 1/28/2014. Defendant's Reply in Support of its Motion for Summary Judgment and Opposition to Plaintiffs Cross-Motion for Summary Judgment is due by 1/29/2014. Signed by Judge Ketanji Brown Jackson on 1/29/2014. (lckbj1) (Entered: 01/29/2014)
2014-02-10	26	REPLY to opposition to motion re 20 Cross MOTION for Summary Judgment filed by NELSON JOSE MEZERHANE GOSEN. (Grossman, Sandra) (Entered: 02/10/2014)
2014-07-25	27	MOTION for Leave to File Supplemental Authority by NELSON JOSE MEZERHANE GOSEN (Attachments: # 1 Exhibit A)(Grossman, Sandra) (Entered: 07/25/2014)
2014-07-28		MINUTE ORDER granting 27 Motion for Leave to File Supplemental Authority. Signed by Judge Ketanji Brown Jackson on 07/28/2014. (lckbj1) (Entered: 07/28/2014)
2014-10-16	28	ORDER. It is hereby ORDERED that Defendants shall submit by 11/14/2014 unredacted copies of all 77 pages at issue in this case for in camera review. It is FURTHER ORDERED that Defendants shall submit by 11/14/2014 redacted copies of any documents that: (1) have already been produced to Plaintiff, and (2) remain disputed in this case. Signed by Judge Ketanji Brown Jackson on 10/16/2014. (lckbj2) (Entered: 10/16/2014)
2014-11-14	29	NOTICE Of In Camera Submission by CITIZENSHIP AND IMMIGRATION SERVICES (Attachments: # 1 Exhibit A)(Truong, John) (Entered: 11/14/2014)
2014-11-28	30	RESPONSE TO DEFENDANT'S SUBMISSION OF DOCUMENTS FOR IN CAMERA REVIEW filed by NELSON JOSE MEZERHANE GOSEN. (Attachments: # 1 Exhibit A)(Grossman, Sandra) (Entered: 11/28/2014)
2014-12-04	31	MEMORANDUM OPINION granting in part and denying in part Defendant's 17 Motion for Summary Judgment and denying Plaintiff's 20 Cross Motion for Summary Judgment. See attached document for details. Signed by Judge Ketanji Brown Jackson on 12/4/2014. (lckbj3) (Entered: 12/04/2014)
2014-12-04	32	ORDER. It is hereby ordered that Defendant's 17 Motion for Summary Judgment will be granted in part and denied in part and Plaintiff's 20 Cross Motion for Summary Judgment will be denied. It is FURTHER ORDERED that the parties must notify this Court by 01/19/2015 whether this case may be settled or further briefing is required. It is FURTHER ORDERED that any renewed motions for summary judgment must be filed by 02/18/2015. Response briefs will be due by 03/04/2015. See attached order for details. Signed by Judge Ketanji Brown Jackson on 12/4/2014. (lckbj3) (Entered: 12/04/2014)
2014-12-08		Set/Reset Deadlines: Renewed Summary Judgment motions due by 2/18/2015. Response to Motion for Summary Judgment due by 3/4/2015. (gdf) (Entered: 12/08/2014)
2015-01-20	33	NOTICE Regarding Status of Case by CITIZENSHIP AND IMMIGRATION SERVICES (Truong, John) (Entered: 01/20/2015)
2015-01-28	34	NOTICE of Change of Address by Sandra Andrea Grossman (Grossman, Sandra) (Entered: 01/28/2015)
2015-02-09	35	MOTION to Modify Scheduling Order (ECF No. 32) by CITIZENSHIP AND IMMIGRATION SERVICES (Truong, John) (Entered: 02/09/2015)
2015-02-11	36	NOTICE Errata Re Motion to Modify Scheduling Order (ECF No. 35) by CITIZENSHIP AND IMMIGRATION SERVICES (Attachments: # 1 Exhibit A)(Truong, John) (Entered: 02/11/2015)
2015-02-18	37	MOTION for Summary Judgment Renewed by NELSON JOSE MEZERHANE GOSEN (Grossman, Sandra) (Entered: 02/18/2015)
2015-02-19		MINUTE ORDER granting, for good cause shown, 35 Motion to Modify Scheduling Order. Summary Judgment motions due by 3/11/2015. Responses to Summary Judgment motions due by 4/1/2015. Signed by Judge Ketanji Brown Jackson on 2/19/2015. (lckbj1) (Entered: 02/19/2015)
2015-02-23	38	Case reassigned to Judge John D. Bates by consent. Judge Ketanji Brown Jackson no longer assigned to the case. (ztnr, ) (Entered: 02/23/2015)
2015-03-11	39	MOTION for Summary Judgment (Renewed) by CITIZENSHIP AND IMMIGRATION SERVICES (Attachments: # 1 Memorandum in Support, # 2 Affidavit Second Supplemental Declaration of Varsenik Papazian and Exhibts 1-2)(Truong, John) (Entered: 03/11/2015)
2015-03-11	40	Memorandum in opposition to re 37 MOTION for Summary Judgment Renewed (See ECF No. 39 for Declaration and Exhibits) filed by CITIZENSHIP AND IMMIGRATION SERVICES. (Truong, John) (Entered: 03/11/2015)
2015-04-01	41	Memorandum in opposition to re 39 MOTION for Summary Judgment (Renewed) filed by NELSON JOSE MEZERHANE GOSEN. (Attachments: # 1 Affidavit of Prakash Khatri, Former USCIS Ombudsman, # 2 Affidavit of Attorney Grossman with accompanying Exhibits)(Grossman, Sandra) (Entered: 04/01/2015)
2015-04-08	42	Consent MOTION for Extension of Time to File Reply by CITIZENSHIP AND IMMIGRATION SERVICES (Truong, John) (Entered: 04/08/2015)
2015-04-08		MINUTE ORDER: Upon consideration of 42 defendant's consent motion for extension of time to file a reply, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that defendant shall file its reply by not later than April 27, 2015. SO ORDERED. Signed by Judge John D. Bates on 4/8/15. (lcjdb1) (Entered: 04/08/2015)
2015-04-09		Set/Reset Deadlines: Defendant shall file its reply to the Cross Motion by 4/27/2015. (jth) (Entered: 04/09/2015)
2015-04-27	43	REPLY to opposition to motion re 39 MOTION for Summary Judgment (Renewed) filed by CITIZENSHIP AND IMMIGRATION SERVICES. (Truong, John) (Entered: 04/27/2015)
2015-06-01	44	MOTION for Leave to File Supplemental Evidence by NELSON JOSE MEZERHANE GOSEN (Attachments: # 1 Exhibit N)(Grossman, Sandra) (Entered: 06/01/2015)
2015-06-18	45	RESPONSE re 44 MOTION for Leave to File Supplemental Evidence filed by CITIZENSHIP AND IMMIGRATION SERVICES. (Attachments: # 1 Affidavit of Elizabeth Posont (Govt Exh A))(Truong, John) (Entered: 06/18/2015)
2015-07-30	46	ORDER granting in part and denying in part 37 plaintiff's motion for summary judgment; granting in part and denying in part 39 defendant's motion for summary judgment; granting 44 plaintiff's motion for leave to file supplemental evidence; and setting schedule. See text of Order and accompanying Memorandum Opinion for details. Signed by Judge John D. Bates on 7/30/15. (lcjdb1) . Modified on 7/31/2015 (tb). (Entered: 07/30/2015)
2015-07-30	47	MEMORANDUM OPINION. Signed by Judge John D. Bates on 7/30/15.(lcjdb1) (Entered: 07/30/2015)
2015-07-30	48	SUPPLEMENTAL EXHIBIT (N) to re 37 MOTION for Summary Judgment Renewed filed by NELSON JOSE MEZERHANE GOSEN. (znmw) (Entered: 07/31/2015)
2015-08-14	49	STATUS REPORT by CITIZENSHIP AND IMMIGRATION SERVICES. (Attachments: # 1 Exhibit A)(Truong, John) (Entered: 08/14/2015)
2015-08-14		MINUTE ORDER: Upon consideration of 49 defendant's status report, and the entire record herein, it is hereby ORDERED that plaintiff shall respond, if at all, to that status report by not later than August 21, 2015. SO ORDERED. Signed by Judge John D. Bates on 8/14/15. (lcjdb1) (Entered: 08/14/2015)
2015-08-16		Set/Reset Deadlines: Plaintiff shall respond, if at all, to 49 Defendant's Status Report, by 8/21/2015. (jth) (Entered: 08/16/2015)
2015-09-02	50	ORDER noting that the government's obligations have been satisfied; and explaining that 46 the prior July 30, 2015, Order and this Order constitute the Court's final judgment. See text of Order for details. Signed by Judge John D. Bates on 9/2/15. (lcjdb1) (Entered: 09/02/2015)
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