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Case TitleEMUWA et al v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2020cv01756
Date Filed2020-06-29
Date Closed2021-06-03
JudgeJudge Trevor N. McFadden
PlaintiffAMARA EMUWA
PlaintiffMICHAUX LUKUSA
PlaintiffMOHAMMED ALQARAGHULI
PlaintiffFNU ALATANHUA
PlaintiffLOUISE TRAUMA CENTER LLC
Case DescriptionAmara Emuwa, Michaux Lukusa, Mohammed Alqaraghuli, Fnu Alatanhua, and the Louise Trauma Center submitted FOIA requests to the Department of Homeland Security for records concerning their asylum assessment reports. The agency acknowledged receipt of their requests but refused to provide the assessment recommendation for the asylum interviews. Emuwa and the others then filed a class action practice or policy claim suit.
Complaint issues: Litigation - Attorney's fees

DefendantUNITED STATES DEPARTMENT OF HOMELAND SECURITY
AppealD.C. Circuit 21-5131
AppealD.C. Circuit 22-5153
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Complaint attachment 7
Complaint attachment 8
Complaint attachment 9
Complaint attachment 10
Complaint attachment 11
Opinion/Order [23]
FOIA Project Annotation: Judge Trevor McFadden has reaffirmed that Assessments to Refer, which contain recommendations of asylum officers after their interviews with asylum seekers, are largely protected by the deliberative process privilege and that only those portions of the report consisting of factual recitations of the case are non-privileged and disclosable under FOIA. Further, McFadden concluded that Louise Trauma Center, the organization representing four individual plaintiffs, had not shown that it had standing to bring a pattern or practice claim against the agency for its policy of refusing to disclose the analytical portions of the reports. Louise Trauma Center brought suit against the Department of Homeland Security for refusing to disclose the analytical portions of assessments of four individuals seeking asylum �" Amara Emuwa, Michaux Lukusa, Mohammed AlQaraghuli, and FNU Alatanhua. In response to their requests, DHS disclosed hundreds of pages of records in full, released some in part but withheld others in full. Emuwa, Lukusa, and Alatanhua all filed administrative appeals and DHS disclosed more records as a result. The suit challenged whether DHS's Exemption 5 withholding were proper, whether DHS sufficiently complied with FOIA's segregability requirement and whether the plaintiffs had provided evidence to support its policy-or-practice and inadequate training claims. Louise Trauma Center argued that Exemption 5 did not protect the assessment reports. But McFadden noted that "the deliberative process privilege applies to the Assessments. In fact, the D.C. Circuit has already answered this question. In Abtew v. Dept of Homeland Security, 808 F. 3d 895 (D.C. Cir. 2015), the Circuit held that Abtew's 'Assessment to Refer' was predecisional and deliberative and therefore covered by the privilege." McFadden indicated that "the Circuit reasoned that the assessment was predecisional because 'it was merely a recommendation to a supervisor,' as 'the supervisor, not the official writing the Assessment, made the final decision.' It was also deliberative because 'it was written as part of the process by which the supervisor came to that final decision. The document thus 'has no operative effect' on its own." McFadden pointed out that "Abtew controls here. The Government's declaration states that Assessments to Refer 'are prepared for and provided to the asylum officer's supervisor for review and approval.'" He observed that "the analysis portion of the Assessments are predecisional. . .[T]he Assessments contain the asylum officer's impression of eligibility after an interview, which he then passes along to a supervisor for review and a final decision. . . The Assessments are also deliberative, as 'they were prepared to help the agency formulate its position." McFadden also found the Supreme Court's recent decision in U.S. Fish and Wildlife Service v. Sierra Club, 141 S. Ct. 777 (2021), in which the Court found that draft biological opinions prepared by FWS under the Endangered Species Act, although final in terms of that agency's statutory role, were not final for purposes of the deliberative process privilege because they still could be rejected or modified by the EPA, supported his conclusion here. He noted that "the Court held that the privilege applied to the drafts because, among other things, they were 'opinions that were subject to change.' It also explained that 'a decision's real operative effect' �" meaning 'the legal, not practical consequences that flow from an agency's action' �" is 'an indication of finality.'" He observed: "So too here. The Assessments were 'opinions subject to change,' as the asylum officer's supervisor reviews the Assessment and chooses whether to accept its recommendations. If an asylum officer recommends referral, the supervisor could approve it and the agency could issue a "Referral Notice' �" which may lead to legal consequences when the applicant appears before an immigration judge for removal proceedings �" but the supervisor could also disagree." Louise Trauma Center argued that the Assessments as a practical matter constituted the final decision of the agency and the supervisor's approval was just a pro forma matter. To support its claim, Louise Trauma Center relied on conversations its attorney had with two former asylum officer's seven years previously. McFadden rejected those claims as hearsay, noting that "this Court, like others, has not allowed government defendants to rely on such evidence because of hearsay concerns, and it will not allow Plaintiffs here to do so either. Nor are allegations from unnamed former government employees enough to undermine the Government's admissible evidence supporting summary judgment." Likewise, McFadden rejected Louise Trauma Center's claim that the agency's FOIA Officer did not have personal knowledge of the decisions made by asylum officers. He pointed out that the fact that the FOIA Officer had sufficient personal knowledge of how FOIA requests were processed by her agency was sufficient to meet the personal knowledge standard in Rule 56. Louise Trauma Center also relied on Evans v. Bureau of Prisons, 951 F. 3d 578 (D.C. Cir. 2020), to support its lack of personal knowledge claim. But McFadden explained that "it was lack of specificity �" not personal knowledge �" that doomed the affidavit in Evans." He pointed out that "the lesson of Evans is that 'an agency claiming a FOIA exemption may carry its burden by the production of affidavits,' but 'such affidavits must show, with reasonable specificity, why the documents fall within the exemption.' And the Government complied with this requirement here." McFadden also found the agency had shown that disclosure of the Assessment analysis would cause foreseeable harm. He relied on Machado Amadis v. Dept of State, 971 F.3d 364 (D.C. Cir. 2020), in which the appeals court found that the FBI had shown that disclosure of Blitz forms in which DOJ attorneys identified and analyzed issues presented in FOIA appeals, would cause foreseeable harm if disclosed. Louise Trauma Center argued that the agency here had not met the standard articulated in Machado Amadis. But McFadden indicated that "here, as in Machado Amadis, the agency has 'specifically focused on the information at issue' in the Assessments �" in particular 'the analysis, opinions, deliberations and recommendations of the asylum officer.'" Louise Trauma Center argued that the agency had failed to show that it properly segregated and disclosed non-exempt information from exempt information. But McFadden pointed out that "the agency released the factual portions of the Assessments but withheld the analysis portions is also evidence that it segregated exempt from non-exempt information." He indicated that Louise Trauma Center had also conceded the adequacy of the agency's search, observing that "DHS determined that any responsive records 'would be located in the [Plaintiffs'] A-Files' �" their "Alien File' where 'all immigration transactions involving a particular individual are documented and stored.' The agency has met its burden to 'show that it made a good faith effort to conduct a search for the requested records.'" Louise Trauma Center contended that DHS had a policy-or-practice of improperly withholding the analysis sections of Assessment reports and that included improper training. McFadden noted that "Louise Trauma Center has not shown that it is likely to suffer a future injury. True, it alleges that it 'helps asylum applicants,' 'has made FOIA requests for Assessments of asylum applicants in the past and will continue to do so in the future.' But mere allegations cannot survive summary judgment." Likewise, he dismissed Louise Trauma Center's claim of inadequate training. He noted that "plaintiffs lack standing to pursue this claim too. Plaintiffs have submitted no evidence showing that they will be harmed by the allegedly inadequate training in the future."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative
Opinion/Order [33]
FOIA Project Annotation: Judge Trevor McFadden has reaffirmed his original decision that U.S. Citizenship and Immigration Services properly withheld portions of the Assessment to Refer reports prepared by an asylum officer for three asylum requests of Amara Emuwa, three other individuals, and one organization under Exemption 5 (privileges). At the request of the parties, the D.C. Circuit remanded the case for further consideration in light of its opinion in Reporters Committee for Freedom of the Press v. FBI, 3 F. 4th 450 (D.C. Cir. 2021), which provided guidance on how agencies should interpret the foreseeable harm standard. Reporters Committee provided nuance on the foreseeable harm standard following the D.C. Circuit's initial decision on foreseeable harm in Machado Amadis v. Dept of State, 971 F. 3d 364 (D.C. Cir. 2020). McFadden indicated that neither case had affected his original decision. He pointed out that "after Machado Amadis and Reporters Committee, agencies must make two showings. First, the agency must as always, show that a FOIA exemption applies to withheld information. Second, the agency must articulate in a 'focused and concrete' way, the harm that would result from disclosure, including the basis and likelihood of that harm. Failure to make both showings warrants disclosure." McFadden found that USCIS's explanation in this case "easily rejects'' Plaintiff's argument that the declaration is 'boilerplate.' Unlike the unmoored agency assertions in this Court's Reports Committee case, DHS 'specifically focused on the information at issue' in the Assessments and explained how disclosure of that information 'would chill internal discussions.' Specifically, asylum officers would 'temper their discussions' of a particular applicant and focus less on 'the substance of the information' in the asylum file.' And the agency discussed how disclosure would impede agency deliberations in a 'specific context,' namely,' the full and proper analysis and fair consideration of asylum requests on the merits.'" He observed that "these robust explanations from DHS carry the agency's burden under the foreseeable harm requirement." McFadden rejected the plaintiffs' argument that allegations of fraud were not relevant within the context of Exemption 5's protections. Instead, McFadden indicated that "DHS's discussion of the need for candid evaluations is enough to carry the agency's burden without any reference to fraud. Moreover, DHS has expressly tied its fraud concerns to candor inside the agency. As DHS explains, asylum officers will 'be less forthcoming in their assessments and recommendations' if they know that bad actors could use those recommendations. That type of harm " the 'chilling of candid advice' " is 'exactly what the privilege seeks to prevent' under Exemption 5."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2020-06-291COMPLAINT AMARA EMUWA against UNITED STATES DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 400 receipt number ADCDC-7278181) filed by AMARA EMUWA. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Civil Cover Sheet, # 10 Notice to Counsel/Party, # 11 Summons)(Cleveland, David) (Entered: 06/29/2020)
2020-06-292NOTICE OF RELATED CASE by FNU ALATANHUA, MOHAMMED ALQARAGHULI, AMARA EMUWA, LOUISE TRAUMA CENTER LLC, MICHAUX LUKUSA. Case related to Case No. 20-cv-1128. (zmc) (Entered: 06/29/2020)
2020-06-29Case assigned to Judge Trevor N. McFadden. (zmc) (Entered: 06/29/2020)
2020-06-293SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zmc) (Entered: 06/29/2020)
2020-06-294STANDING ORDER Establishing Procedures for Cases Before Judge Trevor N. McFadden. The parties are hereby ORDERED to read and comply with the directives in the attached standing order. Signed by Judge Trevor N. McFadden on 6/29/2020. (lctnm2) (Entered: 06/29/2020)
2020-06-305RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/30/2020. Answer due for ALL FEDERAL DEFENDANTS by 7/30/2020. (Cleveland, David) (Entered: 06/30/2020)
2020-07-036RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF HOMELAND SECURITY served on 7/2/2020 (Cleveland, David) (Entered: 07/03/2020)
2020-07-087RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 07/06/2020. (Cleveland, David) (Entered: 07/08/2020)
2020-07-288MOTION for Extension of Time to File Answer by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Brudy-Everett, Kristin) (Entered: 07/28/2020)
2020-07-28MINUTE ORDER denying Defendant's 8 Motion for Extension of Time to File Answer. Defendant's motion fails to comply with Local Civil Rule 7(m), which requires the moving party to discuss any anticipated nondispositive motion in a civil action with opposing counsel and to "include in its motion a statement that the required discussion occurred, and a statement as to whether the motion is opposed." Defendant's motion also fails to comply with Paragraph 9(A) of the Court's 4 Standing Order, which states that motions for extension of time "must be filed at least four business days prior to the first affected deadline." SO ORDERED. Signed by Judge Trevor N. McFadden on 7/28/2020. (lctnm2) (Entered: 07/28/2020)
2020-07-309ANSWER to Complaint by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Brudy-Everett, Kristin) (Entered: 07/30/2020)
2020-07-31MINUTE ORDER. Before the Court are a Complaint and an Answer in this FOIA case. It is hereby ORDERED that the parties shall meet and confer and file a Joint Status Report proposing a schedule for proceeding in this matter. The schedule should address, among other things, the status of Plaintiff's FOIA request, the anticipated number of documents responsive to Plaintiff's FOIA request, the anticipated date(s) for release of the documents requested by Plaintiff, whether a motion for an Open America stay is likely in this case, whether a Vaughn index will be required in this case, and a briefing schedule for dispositive motions, if required. The parties shall file the report on or before August 31, 2020. SO ORDERED. Signed by Judge Trevor N. McFadden on 7/31/2020. (Entered: 07/31/2020)
2020-07-31Set/Reset Deadlines: Joint Status Report due by 8/31/2020. (hmc) (Entered: 07/31/2020)
2020-08-3110Joint STATUS REPORT by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Brudy-Everett, Kristin) (Entered: 08/31/2020)
2020-08-31MINUTE ORDER. Upon consideration of the 10 Joint Status Report, it is hereby ORDERED that the parties shall appear for a Status Conference on September 9, 2020, at 10:00 a.m., before Judge Trevor N. McFadden. The conference will take place by telephone. Dial-in information will be emailed to counsel. SO ORDERED. Signed by Judge Trevor N. McFadden on 8/31/2020. (lctnm2) (Entered: 08/31/2020)
2020-08-31Set/Reset Hearings: Telephonic Status Conference set for 9/9/2020 at 10:00 AM before Judge Trevor N. McFadden. (hmc) (Entered: 08/31/2020)
2020-09-09Minute Entry for proceedings held before Judge Trevor N. McFadden: Telephonic Status Conference held on 9/9/2020. Defendant's Motion for Summary Judgment due by 9/30/2020. Plaintiffs' combined Cross-Motion and Opposition to Defendant's Motion for Summary Judgment due by 10/30/2020. Defendant's combined Opposition to Plaintiffs' Cross-Motion and Reply due by 11/20/2020. Plaintiffs' Reply in support of their Cross-Motion due by 12/11/2020. (Court Reporter: Crystal Pilgrim.) (hmc) (Entered: 09/09/2020)
2020-09-2211MOTION for Extension of Time to File Motion for Class Certification by AMARA EMUWA (Cleveland, David) (Entered: 09/22/2020)
2020-09-22MINUTE ORDER. Before the Court is Plaintiffs' 11 Motion for Extension of Time to File Motion for Class Certification. Plaintiffs state that they sought but "did not obtain" Defendant's consent for this motion. Defendant shall respond to Plaintiffs' 11 Motion on or before September 24, 2020. SO ORDERED. Signed by Judge Trevor N. McFadden on 9/22/2020. (lctnm2) (Entered: 09/22/2020)
2020-09-23Set/Reset Deadlines: Defendant's response to Plaintiffs' 11 Motion due by 9/24/2020. (hmc) (Entered: 09/23/2020)
2020-09-2412RESPONSE re 11 MOTION for Extension of Time to File Motion for Class Certification filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Brudy-Everett, Kristin) (Entered: 09/24/2020)
2020-09-25MINUTE ORDER denying Plaintiffs' 11 Motion for Extension of Time to File Motion for Class Certification. Plaintiffs provide no basis for their extension request and therefore fail to establish good cause for the extension. See Fed. R. Civ. P. 6(b)(1). SO ORDERED. Signed by Judge Trevor N. McFadden on 9/25/2020. (lctnm2) (Entered: 09/25/2020)
2020-09-2813MOTION to Certify Class by AMARA EMUWA (Cleveland, David) (Entered: 09/28/2020)
2020-09-3014MOTION for Summary Judgment and Statement of Facts by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Exhibit A - DHS Vaughn Index, # 2 Exhibit B - Declaration of Jill A. Eggleston, # 3 Text of Proposed Order)(Brudy-Everett, Kristin) (Entered: 09/30/2020)
2020-10-2815Memorandum in opposition to re 14 MOTION for Summary Judgment and Statement of Facts filed by AMARA EMUWA. (Attachments: # 1 Statement of Facts, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(Cleveland, David) (Entered: 10/28/2020)
2020-10-2916MOTION for Summary Judgment by AMARA EMUWA (Attachments: # 1 Statement of Facts)(Cleveland, David) (Entered: 10/29/2020)
2020-11-02MINUTE ORDER. The Court has placed the Plaintiff's 15 Memorandum in Opposition under seal because it contains private personal information that should have been redacted. The Plaintiffs shall file a properly redacted version of their 15 Memorandum for the public docket on or before 11/9/2020. SO ORDERED. Signed by Judge Trevor N. McFadden on 11/2/2020. (lctnm2) (Entered: 11/02/2020)
2020-11-02Set/Reset Deadlines: Plaintiffs' redacted version due by 11/9/2020. (hmc) (Entered: 11/02/2020)
2020-11-06MINUTE ORDER. The Court has placed the Plaintiffs' 17 Errata under seal because it contains third party personally identifiable information ("PII") that has not been properly redacted. On 11/2/2020, the Court ordered the Plaintiffs to "file a properly redacted version of their 15 Memorandum for the public docket." The Plaintiffs have failed to comply with this order, as their 17 Errata contains PII that is still visible or partially visible. The Plaintiffs shall file a fully redacted version of their 15 Memorandum for the public docket on or before 11/13/2020. The Court takes protection of third parties' PII seriously and expects all parties to do likewise. Failure to adhere to this Order may result the imposition of sanctions. SO ORDERED. Signed by Judge Trevor N. McFadden on 11/6/2020. (lctnm2) (Entered: 11/06/2020)
2020-11-06Set/Reset Deadlines: Plaintiffs' redacted version due by 11/13/2020. (hmc) (Entered: 11/06/2020)
2020-11-0818ERRATA Memorandum in Opposition by AMARA EMUWA. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Cleveland, David) (Entered: 11/08/2020)
2020-11-2019REPLY to opposition to motion re 16 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Brudy-Everett, Kristin) (Entered: 11/20/2020)
2020-12-1120REPLY to opposition to motion re 16 MOTION for Summary Judgment filed by AMARA EMUWA. (Attachments: # 1 Exhibit)(Cleveland, David) (Entered: 12/11/2020)
2021-04-1521NOTICE OF SUPPLEMENTAL AUTHORITY by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Brudy-Everett, Kristin) (Entered: 04/15/2021)
2021-05-3122MOTION for Leave to File Sur Reply by All Plaintiffs. (Attachments: # 1 Exhibit)(Cleveland, David) Modified on 6/2/2021 (zeg). (Entered: 05/31/2021)
2021-06-0323MEMORANDUM OPINION re the parties' 14 and 16 Motions for Summary Judgment. Signed by Judge Trevor N. McFadden on 6/3/2021. (lctnm2) (Entered: 06/03/2021)
2021-06-0324ORDER. For the reasons stated in 23 Memorandum Opinion, Defendant's 14 Motion for Summary Judgment is GRANTED; Plaintiffs' 16 Cross-Motion for Summary Judgment is DENIED; Plaintiffs' 13 Motion for Class Certification is DENIED as moot; and Plaintiffs' 22 Motion for Leave to File a Sur-reply is GRANTED in part and DENIED in part. See attached Order for details. Signed by Judge Trevor N. McFadden on 6/3/2021. (lctnm2) (Entered: 06/03/2021)
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