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Martins v. United States Citizenship & Immigration Servs.

United States District Court, N.D. California

July 3, 2013

JEFFREY MARTINS, Plaintiff,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants

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[Copyrighted Material Omitted]

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For Jeffrey Martins, Plaintiff: Jeff Glasser, Thomas R. Burke, LEAD ATTORNEYS, Davis Wright Tremaine LLP, San Francisco, CA; Robin L. Goldfaden, LEAD ATTORNEY, Lawyers' Committee for Civil Rights of the San Francisco, San Francisco, CA.

For United States Citizenship and Immigration Services, an agency of the United States Department of Homeland Security, United States Department of Homeland Security, Alejandro Mayorkas, in his official capacity as Director of United States Citizenship and Immigration Services, Janet Napolitano, in her official capacity as Secretary of the Department of Homeland Security, Defendants: Abraham A. Simmons, LEAD ATTORNEY, U.S. Attorney's Office, San Francisco, CA.

OPINION

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LAUREL BEELER, United States Magistrate Judge.

ORDER GRANTING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

INTRODUCTION

Plaintiff Jeffrey Martins, an immigration attorney who represents persons seeking asylum in the United States, brought claims against the United States Citizenship and Immigration Services (" USCIS" ), Alejandro Mayorkas in his official capacity as Director of the USCIS, the United States Department of Homeland Security (" DHS" ), and Janet Napolitano, in her official capacity as Secretary of DHS (collectively, " Defendants" ), under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 et seq., and the Administrative Procedure Act (" APA" ), 5 U.S.C. § 701 et seq., to receive, pursuant to his FOIA requests, the " interview notes" taken by Asylum Officers when they interviewed his clients. See generally Complaint, ECF No. 1. [1] These interview notes, which are

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kept in his clients' " Alien Files" (" A-Files" ), are being withheld by Defendants on the ground that they are protected by the deliberative process privilege and therefore are covered by Exemption 5 of FOIA, 5 U.S.C. § 552(b)(5). See id. ¶ 5. Mr. Martins moves for a preliminary injunction enjoining Defendants from asserting Exemption 5 and requiring them to promptly produce the interview notes so that Mr. Martins can use them to prepare for his clients' upcoming removal hearings. Motion, ECF No. 17. Defendants oppose the motion. [2] Opposition, ECF No. 20. Upon consideration of the record in the case and the arguments of counsel at the July 3, 2013 hearing, the court GRANTS Mr. Martins's motion and orders the expedited Vaughn index described below.

STATEMENT

I. THE ASYLUM PROCESS

The following description of the asylum process is taken from the allegations in Mr. Martins's complaint and the evidence he submitted in support of his motion for a preliminary injunction.

Asylum is a form of protection for persons who have suffered persecution or have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Complaint, ECF No. 1 ¶ 16. A grant of asylum gives the individual legal immigration status in the United States. Id. A person who is not in removal proceedings may apply for asylum affirmatively, and one who is in removal proceedings may apply as a defense to removal. Id. ¶ 17; Martins Declaration, ECF No. 17 ¶ 9. Affirmative asylum seekers commence the application process by mailing a completed Form 1-589 to one of four USCIS Service Centers. Complaint, ECF No. 1 ¶ 17; Martins Declaration, ECF No. 17 ¶ 9. The application then is forwarded to the USCIS Asylum Office that has jurisdiction over the case, and the applicant is scheduled to appear for an interview before an Asylum Officer. Complaint, ECF No. 1 ¶ 17; Martins Declaration, ECF No. 17 ¶ 9.

An asylum applicant may appear for the interview on his or her own. Complaint, ECF No. 1 ¶ 18; Martins Declaration, ECF No. 17 ¶ 10. Alternatively, at his or her own expense, an applicant may be represented in applying for asylum, including at the interview before the Asylum Officer. Complaint, ECF No. 1 ¶ 18; Martins Declaration, ECF No. 17 ¶ 10. The applicant is responsible for bringing an interpreter to the interview if one is needed. Complaint, ECF No. 1 ¶ 18; Martins Declaration, ECF No. 17 ¶ 10. At the interview, the Asylum Officer reviews the application with the applicant and questions the applicant under oath. Complaint, ECF No. 1 ¶ 19; Martins Declaration, ECF No. 17 ¶ 11. As a general matter, questions are used to elicit information bearing on the applicant's eligibility for asylum. Complaint, ECF No. 1 ¶ 19; Martins Declaration, ECF No. 17 ¶ 11.

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Some matters must be explored with every applicant -- factors related to the elements of the refugee definition, those related to mandatory bars and bases for discretionary denials, the applicant's current immigration status, and factors that relate to the one-year filing deadline. Complaint, ECF No. 1 ¶ 19; Martins Declaration, ECF No. 17 ¶ 11. Some questions will be essentially the same from applicant to applicant, such as whether the person has persecuted others or previously applied for asylum, while other questions probe the particular facts underlying the individual applicant's claim for asylum. Complaint, ECF No. 1 ¶ 19; Martins Declaration, ECF No. 17 ¶ 11. While conducting the interview, the Asylum Officer seeks to determine if the applicant is credible. Complaint, ECF No. 1 ¶ 19; Martins Declaration, ECF No. 17 ¶ 11.

Asylum interviews are not recorded. Complaint, ECF No. 1 ¶ 20; Martins Declaration, ECF No. 17 ¶ 13. The interviewing Asylum Officer is responsible for taking notes that document the interview. Complaint, ECF No. 1 ¶ 20; Martins Declaration, ECF No. 17 ¶ 13. If present, an attorney for the applicant may also take notes and retain his or her own notes. Complaint, ECF No. 1 ¶ 20; Martins Declaration, ECF No. 17 ¶ 13. An interpreter may also take notes in order to help him or her provide accurate interpretation, but these notes normally are confiscated at the end of the interview. Complaint, ECF No. 1 ¶ 20; Martins Declaration, ECF No. 17 ¶ 13.

Asylum Officers receive training and direction about how they are to take notes of asylum interviews. Complaint, ECF No. ¶ 21; Burke Declaration, ECF No. 19 ¶ 3, Exh. A (overview of USCIS Asylum Division Training Programs, from USCIS webpage). The USCIS Asylum Division's Training Section provides training on a national level and on a local level in the field offices. Complaint, ECF No. ¶ 21; Burke Declaration, ECF No. 19 ¶ 3, Exh. A. All Asylum Officers are required to attend and complete the Asylum Officer Basic Training Course (" AOBTC" ), which is a national training course that is specific to asylum adjudications. Complaint, ECF No. ¶ 21; Burke Declaration, ECF No. 19 ¶ 3, Exh. A. One of the AOBTC lesson modules specifically addresses " Note-Taking" by interviewing Asylum Officers. Complaint, ECF No. 1 ¶ 22, Exh. A (" Interview Part 2: Note-Taking" lesson module); Burke Declaration, ECF No. 19 ¶ 4, Exh. B (same). The Note-Taking lesson module provides an overview of the purpose of the notes taken by the interviewing Asylum Officer, and it details the requirements and characteristics of " proper note-taking." Complaint, ECF No. 1 ¶ 23, Exh. A; Burke Declaration, ECF No. 19 ¶ 4, Exh. B. The lesson module explains:

It is essential for asylum officers to take clearly written and comprehensive notes during the interview. Interview notes must accurately reflect what transpired during the interview so that a reviewer can reconstruct the interview by reading the interview notes. In addition, the interview notes should substantiate the asylum officer's decision.

Complaint, ECF No. 1 ¶ 23, Exh. A at 25; Burke Declaration, ECF No. 19, Exh. B at 4.

While it is recognized that mistakes will occur, interviewing Asylum Officers are charged with taking notes that are clear, accurate, detailed, and objective. Complaint ¶ 24, Exh. A; Burke Declaration, ECF No. 19, Exh. B. The lesson module repeatedly emphasizes that " (a] reviewer should be able to reconstruct what transpired during the interview by reading the interview notes." Complaint, ECF No. 1 ¶ 24, Exh. A at 25, 27, 32; Burke Declaration, ECF No. 19, Exh. B at 4, 6, 11. The Officers are not required to transcribe every word that is spoken during the interview,

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but they are instructed that their notes should accurately reflect what the Officer asks and what the applicant says and further that there can be instances when having the notes include every word is essential to capture the meaning of what the applicant has said. Complaint, ECF No. 1 ¶ 24, Exh. A at 26-29; Burke Declaration, ECF No. 19, Exh. B at 5-8. When appropriate, the Asylum Officer is also to note what an applicant does not say, such as when the applicant is not able to answer a question. Complaint, ECF No. 1 ¶ 24, Exh. A at 29; Burke Declaration, ECF No. 19, Exh. B at 8. While documenting the content of the interview, the Officer's notes must not include his or her subjective opinions, suppositions, or personal inferences. Complaint, ECF No. 1 ¶ 25, Exh. A at 27-28; Burke Declaration, ECF No. 19, Exh. B at 6-7. The note-taking lesson module states:

Asylum officers should take care that their notes will be perceived by others as an accurate and objective record of the interview. For example, even an exclamation point placed in reaction to a portion of the applicant's testimony may appear as a judgment of the applicant's claim.

Complaint, ECF No. 1 ¶ 25, Exh. A at 27-28; Burke Declaration, ECF No. 19, Exh. B at 6-7.

After the interview, separate and apart from the notes themselves, the Asylum Officer is responsible for completing an assessment of the asylum applicant's claim. Complaint, ECF No. 1 ¶ 26; Burke Declaration, ECF No. 19 ¶ 5, Exh. C (" Decision Writing Part I: Overview and Components, Focusing on 1st Three Components" lesson module on writing assessments and Notices of Intent to Deny). The assessment provides the Officer's evaluation of the applicant's claim. Complaint, ECF No. 1 ¶ 26; Burke Declaration, ECF No. 19 ¶ 5, Exh. C. A supervisor reviews all of the evidence and the interviewing Officer's assessment before a decision on the application is made. Complaint, ECF No. 1 ¶ 27. In some cases, additional review by Headquarters follows. Id. Thereafter, a given application may or may not be granted. Id.

If asylum is not granted to the affirmative asylum applicant and the applicant otherwise does not have valid immigration status in the United States, a Notice to Appear is issued to the asylum seeker and the individual is referred for removal proceedings at the Immigration Court. Id. ¶ 28; Martins Declaration, ECF No. 18 ¶ ¶ 16-17. The Referral Notice typically provides only minimal information about the basis or bases for the Asylum Office's decision not to grant asylum. Id. ¶ 28; Martins Declaration, ECF No. 18 ¶ 17.

Before the Immigration Court, the applicant, now formally referred to as the " respondent," can renew his or her application for asylum. Complaint, ECF No. 1 ¶ 29. The Immigration Judge reviews the respondent's asylum case de novo. Id. The proceedings are now adversarial in nature, with the respondent's application contested by an attorney working for Immigration and Customs Enforcement (" ICE" ), another component of the Department of Homeland Security. Id. ICE Trial Attorneys prosecuting cases before the Immigration Court have access to a great deal of information about respondents, including each individual's A-File, which contains all official record material for a noncitizen for whom DHS or its predecessor agency has created a record under the Immigration and Nationality Act. Id. ¶ 30; Martins Declaration, ECF No. 18 ¶ 20. It includes all immigration-related documents such as previously submitted applications and petitions, naturalization certificates, documents related to removals from the United States, reports of investigations, statements, correspondence, and memoranda. Id. Also included are the Asylum

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Officer notes from the asylum interview and the Asylum Officer's assessment. Id. ¶ 31. The government allows ICE Trial Attorneys to use the Asylum Officer interview notes as evidence in the removal proceedings. Id. In fact, the AOBTC Note-Taking lesson module specifically contemplates that " ICE Trial attorneys have access to the files of cases that are referred to the immigration judge or denied by the asylum officer. If interview notes are introduced to the court as evidence, the immigration judge will also see the interview notes." Id., Exh. A at 4; Burke Declaration, ECF No. 19 ¶ 4, Exh. B at 4. In many cases, ICE Trial Attorneys will compare court testimony or prior written statements to the notes in an effort to identify inconsistencies, and they will use the notes to try to impeach the applicant's credibility. Complaint, ECF No. 1 ¶ 31. The AOBTC " Note-Taking" lesson module also expressly contemplates that individual respondents and their representatives will be given a copy of the Asylum Officer notes if the interview notes are introduced in proceedings before the Immigration Court. Id. ¶ 33, Exh. A at 4; Burke Declaration, ECF No. 19 ¶ 4, Exh. B at 4.

To prepare their clients and present their cases in the strongest manner possible, attorneys representing respondents before the Immigration Court (like Mr. Martins) frequently will submit FOIA requests to USCIS for their clients' A-Files in advance of the individual merits hearings. Complaint, ECF No. 1 ¶ 34; Martins Declaration, ECF No. 18 ¶ ¶ 5-8. For asylum seekers and their representatives, a FOIA request for the A-File is often the fastest way -- and for many, the only practical way -- to secure information from the A-File that is needed to prepare sufficiently in advance of the merits hearing. Complaint, ECF No. 34; Martins Declaration, ECF No. 18 ¶ ¶ 5-8. In representing an individual referred by the Asylum Office for proceedings before the Immigration Court, having the notes from the individual's interview before an Asylum Officer can be integral to the representation the attorney will seek to provide to his or her client. Complaint, ECF No. 1 ¶ 35; Martins Declaration, ECF No. 18 ¶ ¶ 18-24. The notes are especially important to have when an attorney is representing an individual whom he or she did not represent before the Asylum Office. Complaint, ECF No. 1 ¶ 35; Martins Declaration, ECF No. 18 ¶ ¶ 18-24.

For example, for clients he did not represent in the asylum interview, Mr. Martins uses Asylum Officers' notes to:

o identify ways in which clients did not effectively communicate facts relevant to showing their eligibility for asylum;

o better prepare the clients for their hearings and determine whether additional evidence should be presented in support of the clients' claims;

o identify when possible inconsistencies may be emerging and question the client to develop an understanding of what might explain those perceived differences in the way the client has communicated his or her experience on different occasions;

o prepare clients for the cross-examination they will likely face from ICE Trial Attorneys; and

o assess whether the notes reflect a mistake or misunderstanding on the part of the interviewing Asylum Officer or simply a miscommunication between the Officer and the applicant or the interpreter.

Complaint, ECF No. 1 ¶ 36; Martins Declaration, ECF No. 18 ¶ ¶ 18-24. [3] Conversely, when Mr. Martins does not have the notes ...


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