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  • Article: COURT ORDERS RELEASE OF FIRST SIX PARAGRAPHS OF ASSESSMENT OF ASYLUM OFFICER IN FOIA DECISION By David L. Cleveland

    COURT ORDERS RELEASE OF FIRST SIX PARAGRAPHS OF ASSESSMENT OF ASYLUM OFFICER IN FOIA DECISION

    by


    August 10, 2014

    The U.S. District Court for the District of Columbia (Judge Amy Jackson) ruled that the first six paragraphs of an Assessment of an asylum officer are not protected by any exemption to the Freedom of Information Act and must be released. Abtew v. DHS, 2014 WL 2620982 (D.D.C. 2014).

    Mr. Anteneh Abtew, a native and citizen of Ethiopia, arrived in the United States in February 2012, and filed an application for asylum with the U.S. Citizenship and Immigration Services, a component of the Department of Homeland Security (“DHS”).

    Mr. Abtew was interviewed by an asylum officer, who took several pages of notes. Then, the officer wrote a four-page Assessment to Refer, concluding that asylum should be denied. A supervisor initialed his concurrence, and the Assessment and notes were delivered to the DHS lawyer in Arlington VA. Mr. Abtew was notified that his asylum claim was rejected, and that he had to appear before the Arlington VA Immigration Court, which is part of the Department of Justice, for a de novo hearing on his asylum claim.

    Mr. Abtew was not given a copy of the notes and Assessment of the asylum officer.

    Then, pursuant to 5 U.S.C. § 552, Abtew made a Freedom of Information Act [“FOIA”] request to the DHS, demanding the notes and Assessment. The DHS refused to disclose them, and notified Abtew that he had the right to file suit in federal court to try to get the documents.

    PROCEEDINGS IN U.S. DISTRICT COURT

    Abtew filed a complaint in the U.S. District Court for the District of Columbia, arguing that the notes and assessment were not exempt under the FOIA.

    Abtew argued that the notes were not exempt under FOIA, because the DHS had stipulated in an earlier case, Martins v. US-CIS, 962 F. Supp. 2d 1106 (N.D. Cal. 2013), that the notes were not exempt. The DHS disclosed the notes to Abtew soon after the lawsuit was filed.

    Abtew argued that Assessment was not exempt under the FOIA on many grounds, including the fact that Assessments were often used in immigration courts against asylum applicants. Therefore, whatever privilege or exemption an Assessment may have, had been waived.

    The Court ruled that the DHS had not waived any privilege by its acts in the past.

    Abtew also argued that the Assessment was not exempt under the FOIA because another statute, 8 U.S.C. § 1229a(b)(4) required the disclosure of the document. That statute provides that the alien shall have a “reasonable opportunity to examine the evidence against him….” Abtew argued that the Assessment was “evidence against him,” therefore, he must be allowed to examine it now, before going to immigration court.

    The Court disagreed, ruling that this statute only came into play only if the Assessment was actually used in immigration court by the DHS.

    Abtew further argued that even if the Assessment was exempt under FOIA, any facts that could be “segregated” out from the Assessment must be disclosed, under 5 U.S.C. § 552 (b). After an in camera inspection, the Court ruled that the first six paragraphs of the Assessment were “easily segregable,” and therefore the DHS must disclose them.

    Mr. Abtew has filed a Notice of Appeal; the DHS has not yet released the first six paragraphs.

    = = = =

    If you would like more information, contact David L. Cleveland at <1949.david@gmail.com>

    Reprinted with permission.


    About The Author

    David L. Cleveland is a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 41 countries.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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