Case Detail

FOIA Project Annotation: Judge Amy Berman Jackson has ruled that U.S. Citizenship and Immigration Services properly withheld the Assessment to Refer pertaining to Kaps Kapende and the Assessment to Grant Asylum pertaining to Annie Kaseka under Exemption 5 (privileges). Kapende and Kaseka, Congolese nationals, both applied for asylum after arriving in the United States. They were both interviewed by asylum officers. Kapende's request for asylum was denied, while Kaseka's request was granted. Catholic Charities filed FOIA requests on behalf of Kapende and Kaseka for the memos written by the asylum officers and related records. In response to its request for Kapende's records, USCIS disclosed 145 pages in full, 26 pages in part, and withheld 12 pages in full, citing Exemption 5. Catholic Charities filed an administrative appeal and the agency released an additional three pages of the asylum officer's Assessment to Refer which had initially been withheld in full. In response to Kaseka's request, the agency disclosed 378 pages in full, 25 pages in part, and withheld six pages in full. After Catholic Charities filed an administrative appeal, the agency released an additional two pages in part. Catholic Charities argued that the asylum officer's assessments were in practice final decisions. Jackson pointed out that the D.C. Circuit had found in Abtew v. Dept of Homeland Security, 808. F.3d 895 (D.C. Cir. 2015), that the assessment referrals were preliminary recommendations to superiors, not final decisions. Catholic Charites argued that the situation here was different than Abtew because the agency had changed its policy since Abtew was decided. But Jackson noted that "it is unclear what 'change' plaintiffs are referring to. The passages simply reiterate the argument that the initial assessment is a final decision, and that the Referral Notice is created by the asylum officer using a computer that contains 'boilerplate' language." She added that 'plaintiffs' conclusory and unsupported allegations are insufficient to rebut the agency's detailed declaration establishing that indeed no other human actions took place. . .[T]he agency subsequently issued a Referral Notice informing plaintiff of its final decision, and even that did not mark the end of the process. The case was then referred to an immigration judge for a final decision." Jackson pointed out that "the Assessment to Grant Asylum, like the Assessment to Refer, serves as a preliminary recommendation from the interviewing asylum officer to the supervisor. 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. The initialed Assessment to Grant Asylum is not the final decision. The agency informs the applicant of its final decision by using a separate document known as an 'Asylum Approval Memo.' 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."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2018-05-29	1	COMPLAINT against DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 400 receipt number 0090-5503410) filed by KAPS KAPENDE. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Civil Cover Sheet, # 12 Notice to Counsel/Party, # 13 Summons, # 14 Summons, # 15 Summons)(Cleveland, David) (Entered: 05/29/2018)
2018-05-29	2	NOTICE OF RELATED CASE by All Plaintiffs. Case related to Case No. 13-1566, 17-1924, 15-459. (zsb) (Entered: 05/30/2018)
2018-05-30		Case Assigned to Judge Amy Berman Jackson. (zsb) (Entered: 05/30/2018)
2018-05-30	3	SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zsb) (Entered: 05/30/2018)
2018-05-30	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/30/2018. Answer due for ALL FEDERAL DEFENDANTS by 6/29/2018. (Cleveland, David) (Entered: 05/30/2018)
2018-06-04		MINUTE ORDER. Plaintiffs filed 2 a Notice of Related Case(s) in which they assert that two other pending cases in this district are "somewhat related" to the present case. The Court finds that no action needs to be taken pursuant to Local Civil Rule 40.5. Signed by Judge Amy Berman Jackson on 06/04/2018. (lcabj3) (Entered: 06/04/2018)
2018-06-08	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 06/01/2018. (Cleveland, David) (Entered: 06/08/2018)
2018-06-22	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF HOMELAND SECURITY served on 6/21/2018 (Cleveland, David) (Entered: 06/22/2018)
2018-06-28	7	MOTION for Extension of Time to File Answer re 1 Complaint, by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Hendry, Melanie) (Entered: 06/28/2018)
2018-06-28		MINUTE ORDER granting 7 Motion for Extension of Time. Defendant must respond to the complaint by July 20, 2018. Signed by Judge Amy Berman Jackson on 06/28/2018. (lcabj3) (Entered: 06/28/2018)
2018-07-20	8	ANSWER to Complaint by UNITED STATES DEPARTMENT OF HOMELAND SECURITY.(Hendry, Melanie) (Entered: 07/20/2018)
2018-07-20		VACATED PURSUANT TO MINUTE ORDER FILED 08/09/18.....MINUTE ORDER. Before the Court in this FOIA case are a complaint and an answer. The requirements of Local Civil Rule 16.3 and Rule 26(f) of the Federal Rules of Civil Procedure appear to be inapplicable. Defendant shall file a dispositive motion or, in the alternative, a report setting forth the schedule for the completion of its production of documents to plaintiff, on or before August 17, 2018. Signed by Judge Amy Berman Jackson on 07/20/2018. (lcabj3) Modified on 8/12/2018 (jth). (Entered: 07/20/2018)
2018-07-20		Set/Reset Deadlines: Defendant shall file a dispositive motion or, in the alternative, a report setting forth the schedule for the completion of its production of documents to plaintiff, by 8/17/2018. (jth) (Entered: 07/26/2018)
2018-07-31	9	First MOTION for Order To Require Response of DHS by KAPS KAPENDE (Cleveland, David) (Entered: 07/31/2018)
2018-08-08	10	MOTION for Summary Judgment by KAPS KAPENDE (Attachments: # 1 Statement of Facts, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Cleveland, David) (Entered: 08/08/2018)
2018-08-09		MINUTE ORDER. The Court denies plaintiffs' 9 motion requesting that defendant be required to re-file an answer. This is a FOIA case and the complaint went well beyond the requirements of Federal Rule of Civil Procedure 8 when it included a significant number of legal assertions. Any legal issues that are relevant to the FOIA claims will be fully briefed in the dispositive motions in this case. Signed by Judge Amy Berman Jackson on 08/09/2018. (lcabj3) (Entered: 08/09/2018)
2018-08-09		MINUTE ORDER. The Court's Minute Order issued on July 20, 2018 is hereby vacated and the following briefing schedule is set: defendant's opposition (and cross motion, if any, supported by the same memorandum of points and authorities) will be due August 30, 2018; plaintiffs' reply (combined with its cross opposition, if necessary) will be due September 20, 2018; and defendant's cross reply, if any, will be due October 4, 2018. Signed by Judge Amy Berman Jackson on 08/09/2018. (lcabj3) (Entered: 08/09/2018)
2018-08-29	11	MOTION for Extension of Time to File Response/Reply as to 10 MOTION for Summary Judgment and Cross-Motion by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Hendry, Melanie) (Entered: 08/29/2018)
2018-08-31		MINUTE ORDER. The Court grants defendant's 11 Motion for Extension of Time to file its summary judgment opposition and cross-motion, notwithstanding plaintiffs' objections to the length of the extension. Defendant's opposition and cross motion, supported by the same memorandum of points and authorities, will be due September 20, 2018; plaintiffs' reply, combined with its cross opposition, will be due October 11, 2018; and defendant's cross reply will be due October 25, 2018. Signed by Judge Amy Berman Jackson on 08/31/2018. (lcabj3) (Entered: 08/31/2018)
2018-09-20	12	RESPONSE re 10 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Declaration of Jill A. Eggleston, # 2 Statement of Facts)(Hendry, Melanie) (Entered: 09/20/2018)
2018-09-20	13	Cross MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Declaration of Jill A. Eggleston, # 2 Statement of Facts)(Hendry, Melanie) (Entered: 09/20/2018)
2018-10-04	14	REPLY to opposition to motion re 10 MOTION for Summary Judgment filed by KAPS KAPENDE. (Cleveland, David) (Entered: 10/04/2018)
2018-10-04	15	Memorandum in opposition to re 13 Cross MOTION for Summary Judgment filed by KAPS KAPENDE. (Attachments: # 1 Statement of Facts)(Cleveland, David) (Entered: 10/04/2018)
2018-10-23	16	MOTION for Extension of Time to File Response/Reply by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Hendry, Melanie) (Entered: 10/23/2018)
2018-10-24		MINUTE ORDER. The Court hereby grants defendant's Motion for Extension of Time notwithstanding plaintiffs' objections to the length of the extension. Defendant must file its summary judgment reply by November 15, 2018. SO ORDERED. Signed by Judge Amy Berman Jackson on 10/24/2018. (lcabj3) (Entered: 10/24/2018)
2018-11-14	17	MOTION for Extension of Time to File Response/Reply by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Hendry, Melanie) (Entered: 11/14/2018)
2018-11-15	18	RESPONSE re 17 MOTION for Extension of Time to File Response/Reply filed by KAPS KAPENDE. (Cleveland, David) (Entered: 11/15/2018)
2018-11-15		MINUTE ORDER granting 17 Motion for Extension of Time. The original schedule in this case afforded the defendant two weeks to file a cross-reply, a week longer than the rather stingy seven days provided for in the Local Rules. On October 23, 2018 the defense requested a three week extension, which the Court granted over the plaintiffs' rather stingy objection. Now defendant is seeking another two weeks, bringing the total amount of time for the filing of the reply -- which should be short and to the point and should not repeat arguments set forth previously -- to seven weeks. Given the timing of the request and the Thanksgiving holiday, the Court appreciates why plaintiffs' counter proposal of five days is unreasonable. The Court will grant defendant's request but no further requests will be granted, and the matter will be fully briefed as of November 29, 2018 with or without the defendant's cross-reply. SO ORDERED. Signed by Judge Amy Berman Jackson on 11/15/2018. (lcabj3) (Entered: 11/15/2018)
2018-11-29	19	REPLY to opposition to motion re 13 Cross MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Hendry, Melanie) (Entered: 11/29/2018)
2019-03-26	20	ORDER. Pursuant to Federal Rules of Civil Procedure 56 and 58, and for the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that plaintiffs' motion for summary judgment 10 is DENIED. It is FURTHER ORDERED that defendant's cross-motion for summary judgment 13 is GRANTED. This is final appealable order. SO ORDERED. Signed by Judge Amy Berman Jackson on 03/26/2019. (lcabj3) (Entered: 03/26/2019)
2019-03-26	21	MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 03/26/2019. (lcabj3) (Entered: 03/26/2019)
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