Case Detail

FOIA Project Annotation: Judge Amy Berman Jackson has ruled that the Assessment to Refer created by an asylum officer at U.S. Citizenship and Immigration Services recommending that Anteneh Abtew's asylum application be denied is protected by Exemption 5 (deliberative process privilege). Abtew traveled to the United States on a tourist visa from Ethiopia and applied for asylum after his visa expired. After an interview, an asylum officer prepared an Assessment to Refer denying Abtew's asylum application. The asylum officer's supervisor initialed the Assessment. After being placed in Abtew's file, the file was transferred to a Homeland Security attorney who would represent the United States at Abtew's immigration proceeding. USCIS then generated a Referral Notice that was provided to Abtew providing the reasons for denying his application. The Referral Notice also explained that his case would be referred to an immigration judge for further proceedings and that the agency's decision was not binding on the immigration judge, who would hear the case de novo. Abtew then requested his file and the agency released 97 pages and withheld 23 pages, including both the asylum officer's notes and the Assessment, which were withheld under Exemption 5. After Abtew filed suit, the agency disclosed the notes, but continued to withhold the Assessment. Abtew argued the Assessment constituted the agency's decision. But Jackson pointed out that "the Assessment does not actually 'dispose' of plaintiff's asylum petition. It is the Decision Letterâ€"in this case, the Referral Noticeâ€"that officially disposes of the asylum petition on behalf of USCIS." Further, Jackson noted that "the Assessment does not mark the end of plaintiff's asylum petition or subject him to a final determination of his status that can be challenged on appeal. Instead, it requires the case to go forward to the immigration court for removal proceedings and a de novo determination of plaintiff's asylum petition by that judge." Abtew contended the reasoning of the Assessment was incorporated in the agency's Referral Notice. But Jackson observed that "the Referral Notice provided its own explanation for the denial of plaintiff's asylum request. As a result, the Assessment did not lose its protected status when USCIS issued the Referral Notice." Abtew argued that if the DHS attorney introduced the Assessment at his immigration proceeding the privilege would be waived. But Jackson noted that "the document has not been used in immigration court as of the date of this opinion, and the claim that it will be used in the future is speculative. A DHS lawyer is not required to introduce an Assessment at the removal proceeding." Abtew continued to insist that the likelihood that the agency would disclose the Assessment at his immigration proceeding constituted a waiver. However, Jackson pointed out that "it is axiomatic that a party does not waive a privilege by intending to take an action in the future; the privilege is waived only when that action is actually taken. As a result, plaintiff cannot rely on the principle that voluntary disclosures may waive privileges because defendant has not made any voluntary disclosure or taken any action that would waive the deliberative process privilege at this time. . ." Abtew suggested that the agency was estopped from claiming the Assessment was privileged because it was likely to disclose it. Again, Jackson observed that "the fact that DHS may choose to waive a privilegeâ€"or even regularly chooses to waive that privilegeâ€"is not inconsistent with maintaining the position that the material is privileged in the first place." However, Jackson's in camera review of the Assessment persuaded her that "the first six paragraphs simply recite and summarize the facts that plaintiff presented to the AO during his asylum application interview. Those paragraphs do not include any analysis of impressions, and they do not reflect the AO's deliberative process: although the document does not purport to be a verbatim rendition of the interview, and there may have been some streamlining involved, the summary does not involve the sort of culling of facts from a large universe that could be characterized as deliberative."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional

Date Filed	Doc #	Docket Text
2013-10-11	1	COMPLAINT ANTENEH ABTEW against UNITED STATES DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 400 receipt number 0090-3498063) filed by ANTENEH ABTEW. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Cleveland, David) Modified on 10/11/2013 (kb). (Entered: 10/11/2013)
2013-10-11	2	CIVIL COVER SHEET filed by ANTENEH ABTEW.(Cleveland, David) Modified on 10/11/2013 (kb). (Entered: 10/11/2013)
2013-10-11	3	REQUEST FOR SUMMONS TO ISSUE filed by ANTENEH ABTEW. (Attachments: # 1 Summons, # 2 Summons)(Cleveland, David) Modified on 10/11/2013 (kb, ). (Entered: 10/11/2013)
2013-10-11	4	NOTICE OF RELATED CASE by ANTENEH ABTEW. Case related to Case No. 13-cv-129. (Cleveland, David) (Entered: 10/11/2013)
2013-10-11		Case Assigned to Judge Amy Berman Jackson. (kb) (Entered: 10/11/2013)
2013-10-11	5	ENTERED IN ERROR.....Electronic Summons (1) Issued as to UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Consent Form, # 2 Notice of Consent)(kb) Modified on 10/15/2013 (jf, ). (Entered: 10/11/2013)
2013-10-11	6	REQUEST FOR SUMMONS TO ISSUE by ANTENEH ABTEW filed by ANTENEH ABTEW. (Attachments: # 1 Summons)(Cleveland, David) (Entered: 10/11/2013)
2013-10-15		NOTICE OF ERROR re 6 Request for Summons to Issue; emailed to 1949.david@gmail.com, cc'd 0 associated attorneys -- The PDF file you docketed contained errors: 1. Incorrect document/case, 2. Please refile document, 3. Counsel must the FOIA Summons (jf, ) (Entered: 10/15/2013)
2013-10-15	7	REQUEST FOR SUMMONS TO ISSUE by ANTENEH ABTEW filed by ANTENEH ABTEW.(Cleveland, David) (Entered: 10/15/2013)
2013-10-15	8	ELECTRONIC SUMMONS (3) Issued as to UNITED STATES DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 10/15/2013)
2013-10-21	9	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 10/17/13. (Cleveland, David) (Entered: 10/21/2013)
2013-10-21	10	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF HOMELAND SECURITY served on 10/21/2013 (Cleveland, David) (Entered: 10/21/2013)
2013-10-23	11	ERRATA by ANTENEH ABTEW 10 Summons Returned Executed as to Federal Defendant. (Attachments: # 1 Exhibit)(Cleveland, David) (Entered: 10/23/2013)
2013-10-23	12	ERRATA by ANTENEH ABTEW 9 Summons Returned Executed as to U.S. Attorney General. (Attachments: # 1 Exhibit)(Cleveland, David) (Entered: 10/23/2013)
2013-11-14	13	Consent MOTION for Extension of Time to File Answer re 1 Complaint, by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Haynes, Fred) (Entered: 11/14/2013)
2013-11-15		MINUTE ORDER granting 13 Consent Motion for Extension of Time to Answer. It is ORDERED that defendant shall answer or otherwise respond to the complaint on or before November 27, 2013. Signed by Judge Amy Berman Jackson on 11/15/2013. (lcabj3) (Entered: 11/15/2013)
2013-11-17		Set/Reset Deadlines: Defendant's Answer or otherwise response to the complaint is due by 11/27/2013. (jth) (Entered: 11/17/2013)
2013-11-27	14	Second MOTION for Extension of Time to File Answer re 1 Complaint, by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Haynes, Fred) (Entered: 11/27/2013)
2013-12-02		MINUTE ORDER granting 14 Motion for Brief, Further Extension of Time to Answer. It is ORDERED that defendant's answer or other response to the complaint is due on or before December 6, 2013. Signed by Judge Amy Berman Jackson on 12/2/2013. (lcabj3) (Entered: 12/02/2013)
2013-12-05		Set/Reset Deadlines: Defendant's Answer or otherwise response to the complaint is due by 12/6/2013. (jth) (Entered: 12/05/2013)
2013-12-06	15	ANSWER to Complaint by UNITED STATES DEPARTMENT OF HOMELAND SECURITY.(Haynes, Fred) (Entered: 12/06/2013)
2013-12-09	16	ORDER that defendant file on or before January 6, 2014, a dispositive motion or, in the alternative, a report setting forth the schedule for document production to plaintiff. See order for details. Signed by Judge Amy Berman Jackson on 12/9/2013. (lcabj3) (Entered: 12/09/2013)
2013-12-09		Set/Reset Deadlines: Defendant's dispositive motion or, in the alternative, report setting forth the schedule for document production to plaintiff is due by 1/6/2014. (jth) (Entered: 12/09/2013)
2013-12-18	17	MOTION for Summary Judgment by ANTENEH ABTEW (Attachments: # 1 Text of Proposed Order, # 2 Statement of Facts, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Cleveland, David) (Entered: 12/18/2013)
2013-12-18	18	ERRATA statement of facts by ANTENEH ABTEW 17 MOTION for Summary Judgment filed by ANTENEH ABTEW. (Cleveland, David) (Entered: 12/18/2013)
2014-01-06	19	Consent MOTION for Extension of Time to File Defendant's Response to Plaintiff's Motion for Summary Judgment and to File Defendant's Cross-Motion for Summary Judgment by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Haynes, Fred). Added MOTION for Leave to File on 1/7/2014 (jf, ). (Entered: 01/06/2014)
2014-01-07		NOTICE OF ERROR re 19 Motion for Extension of Time to; emailed to fred.haynes@usdoj.gov, cc'd 1 associated attorneys -- The PDF file you docketed contained errors: 1. Two-part docket entry, 2. DO NOT REFILE==Counsel is reminded to selecet all parts of their motion (jf, ) (Entered: 01/07/2014)
2014-01-07		MINUTE ORDER granting 19 Consent Motion for Extension of Time to Respond to Plaintiff's Motion for Summary Judgment and to File Defendant's Cross-Motion for Summary Judgment. It is ORDERED that defendant shall respond to plaintiff's motion for summary judgment and file its cross-motion for summary judgment on or before January 21, 2014. Signed by Judge Amy Berman Jackson on 1/7/2014. (lcabj3) (Entered: 01/07/2014)
2014-01-08		Set/Reset Deadlines: Defendant's Response to Plaintiff's Motion for Summary Judgment and its Cross-Motion for Summary Judgment is due by 1/21/201. (jth) (Entered: 01/08/2014)
2014-01-20	20	Consent MOTION for Extension of Time to File Response/Reply as to 17 MOTION for Summary Judgment and to File Defendant's Cross-Motion for Summary Judgment by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Haynes, Fred) (Entered: 01/20/2014)
2014-01-21		MINUTE ORDER granting 20 Consent Motion for Further Extension of Time to Respond to Plaintiff's Motion for Summary Judgment and to File Defendant's Cross-Motion for Summary Judgment. It is ORDERED that defendant shall have to and including January 31, 2014, to respond to plaintiff's motion for summary judgment and to file its cross-motion for summary judgment. The Court notes that this is defendant's second request for an extension of time. Signed by Judge Amy Berman Jackson on 1/21/2014. (lcabj3) (Entered: 01/21/2014)
2014-01-23		Set/Reset Deadlines: Defendant's Response to Plaintiff's Motion for Summary Judgment and Cross-Motion for Summary Judgment is due by 1/31/2014. (jth) (Entered: 01/23/2014)
2014-01-31	21	Consent MOTION for Extension of Time to File Opposition to Plaintiff's Summary Judgment Motion and to File Defendant's Cross-Motion for Summary Judgment by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Haynes, Fred) (Entered: 01/31/2014)
2014-02-03		MINUTE ORDER granting 21 Motion for Extension of Time to Respond to Plaintiff's Motion for Summary Judgment and to File Defendant's Cross-Motion for Summary Judgment. It is ORDERED that defendant shall respond to plaintiff's motion for summary judgment and file its cross-motion for summary judgment on or before February 10, 2014. Signed by Judge Amy Berman Jackson on 2/3/2014. (lcabj3) (Entered: 02/03/2014)
2014-02-03		Set/Reset Deadlines: Defendant's Response to Plaintiff's Motion for Summary Judgment and Cross-Motion for Summary Judgment is due by 2/10/2014. (jth) (Entered: 02/03/2014)
2014-02-10	22	Consent MOTION for Extension of Time to File Summary Judgment and to File Oposition to Plaintiff's Motion for Summary Judgment by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Haynes, Fred) (Entered: 02/10/2014)
2014-02-12		MINUTE ORDER granting 22 Consent Motion for a Further Final Extension of Time. It is ORDERED that defendant shall have to February 12, 2014, to respond to plaintiff's motion for summary judgment and to file its cross-motion for summary judgment. Signed by Judge Amy Berman Jackson on 2/12/2014. (lcabj3) (Entered: 02/12/2014)
2014-02-12		Set/Reset Deadlines: Defendant's Response to Plaintiff's Motion for Summary Judgment and Cross-Motion for Summary Judgment is due by 2/12/2014. (jth) (Entered: 02/12/2014)
2014-02-12	23	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Exhibit A - Eggleston Declaration)(Haynes, Fred) (Entered: 02/12/2014)
2014-02-12	24	Memorandum in opposition to re 17 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Haynes, Fred) (Entered: 02/12/2014)
2014-02-19	25	REPLY to opposition to motion re 17 MOTION for Summary Judgment , filed by ANTENEH ABTEW. (Attachments: # 1 Exhibit, # 2 Exhibit)(Cleveland, David) . (Entered: 02/19/2014)
2014-02-26	26	Memorandum in opposition to re 23 MOTION for Summary Judgment filed by ANTENEH ABTEW. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Cleveland, David) (Entered: 02/26/2014)
2014-03-10	27	Consent MOTION for Extension of Time to File Response/Reply as to 23 MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Haynes, Fred) (Entered: 03/10/2014)
2014-03-11		MINUTE ORDER granting 27 Motion for Extension of Time to File Response/Reply. It is ORDERED that defendant shall file its reply memorandum in support of its motion for summary judgment on or before March 17, 2014. Signed by Judge Amy Berman Jackson on 3/11/2014. (lcabj3) (Entered: 03/11/2014)
2014-03-11		Set/Reset Deadlines: Defendant shall file its Reply Memorandum in support of its Motion for Summary Judgment by 3/17/2014. (jth) (Entered: 03/11/2014)
2014-03-18	28	MOTION for Extension of Time to Respond to Plaintiff's Interrogatories and Requests for Admissions by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Haynes, Fred) (Entered: 03/18/2014)
2014-03-18	29	Second MOTION for Extension of Time to File Response/Reply as to 23 MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Haynes, Fred) (Entered: 03/18/2014)
2014-03-19		MINUTE ORDER granting 29 Motion for Extension of Time to File Response/Reply. It is ORDERED that defendant shall have to March 24, 2014, to file its reply memorandum in support of its motion for summary judgment. Signed by Judge Amy Berman Jackson on 3/19/2014. (lcabj3) (Entered: 03/19/2014)
2014-03-19		Set/Reset Deadlines: Defendant's Reply Memorandum in Support of its Summary Judgment Motion is now due by 3/24/2014. (jth) (Entered: 03/19/2014)
2014-03-19		MINUTE ORDER denying without prejudice 28 Motion for Extension of Time to Respond to Plaintiff's Discovery. Counsel are required to confer in good faith in an effort to resolve all discovery disputes before bringing any dispute to the Court. If counsel are unable to resolve the matter themselves, they may arrange a telephone conference with the Court and counsel for all parties by contacting chambers. No written discovery motion may be filed without a prior conference with the Court and leave of Court. Disputes brought to the Court for resolution may be subject to the sanctions provisions set forth in Fed. R. Civ. Proc. 37 and LCvR. 26.2(a). Signed by Judge Amy Berman Jackson on 3/19/2014. (lcabj3) (Entered: 03/19/2014)
2014-03-21	30	NOTICE Concerning Defendant's Response to Plaintiff's Discovery by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Haynes, Fred) (Entered: 03/21/2014)
2014-03-24	31	Consent MOTION for Extension of Time to File Response/Reply as to 23 MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Haynes, Fred) (Entered: 03/24/2014)
2014-03-25		MINUTE ORDER granting 31 Motion for Extension of Time to File Response/Reply. It is ORDERED that defendant shall have to and including March 26, 2014, to file its reply memorandum in support of its motion for summary judgment. Signed by Judge Amy Berman Jackson on 3/25/2014. (lcabj3) (Entered: 03/25/2014)
2014-03-25		Set/Reset Deadlines: Defendant's Reply Memorandum in Support of its Summary Judgment Motion is now due by 3/26/2014. (jth) (Entered: 03/25/2014)
2014-03-26	32	REPLY to opposition to motion re 23 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Haynes, Fred) (Entered: 03/26/2014)
2014-04-21	33	Final MOTION for Extension of Time to Respond to Plaintiff's Discovery by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Haynes, Fred) (Entered: 04/21/2014)
2014-04-22		MINUTE ORDER granting 33 Motion for Extension of Time to Respond to Plaintiff's Discovery Request. In light of the future telephone conference that the Court will hold in order to address the discovery dispute, it is ORDERED that defendant's response is now due on or before April 30, 2014. Signed by Judge Amy Berman Jackson on 4/22/2014. (lcabj1) (Entered: 04/22/2014)
2014-04-23		Set/Reset Deadlines: Defendant's Response to Plaintiff's Discovery Request is now due by 4/30/2014. (jth) (Entered: 04/23/2014)
2014-04-29		MINUTE ORDER. For the reasons provided during the teleconference held on this date, it is ORDERED that any obligation to comply with discovery requests is stayed pending resolution of the cross-motions for summary judgment. It is FURTHER ORDERED that defendant shall deliver to the Court the disputed document for in camera review on or before May 13, 2014. Signed by Judge Amy Berman Jackson on 4/29/2014. (lcabj1) (Entered: 04/29/2014)
2014-04-29		Minute Entry for proceedings held before Judge Amy Berman Jackson: Telephone Conference Call held in chambers on 4/29/2014. (No Court Reporter). (jth) (Entered: 04/29/2014)
2014-04-29		Set/Reset Deadlines: Defendant shall deliver to the Court the disputed document for In-Camera Review by 5/13/2014. (jth) (Entered: 04/29/2014)
2014-05-07	34	NOTICE of In Camera Submission of a Copy of the Assessment to Refer Plaintiff to the Immigration Court by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Haynes, Fred) (Entered: 05/07/2014)
2014-06-13	35	ORDER granting in part and denying in part 17 Plaintiff's Motion for Summary Judgment, and granting in part and denying in part 23 Defendant's Motion for Summary Judgment. (SEE ORDER FOR DETAILS). Signed by Judge Amy Berman Jackson on 6/13/2014. (lcabj1) (Entered: 06/13/2014)
2014-06-13	36	MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 6/13/2014. (lcabj1) (Entered: 06/13/2014)
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