Abtew v. DHS, No. 13-1566, 2014 WL 2620982 (D.D.C. June 13, 2014) (Jackson, J.)

Abtew v. DHS, No. 13-1566, 2014 WL 2620982 (D.D.C. June 13, 2014) (Jackson, J.)

Re: Request for certain documents concerning plaintiff's asylum application

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The court "finds that the Assessment is predecisional and deliberative, and that it therefore falls under the deliberative process privilege."  The court finds that defendant's "declaration verifies that the [asylum officer] writes the Assessment before a final decision is made; that the Assessment is an essential tool in making that decision; and that the Assessment includes the [asylum officer's] personal thoughts about the merits of the asylum case."  "It is therefore both predecisional and deliberative, bringing it under the protection of the deliberative process privilege."  The court disagrees with plaintiff's contentions to the contrary and holds that "the document cannot be postdecisional in the literal sense of the word because the [asylum officer] drafted it before the final decision was made, and the requirement that the Supervisory [asylum officer] review the Assessment does not somehow transform it into a 'final agency' decision just because the supervisor initialed it" and "[t]here is nothing in the record that supports the conclusion that the Assessment was adopted as the agency's final decision."  Furthermore, regarding plaintiff's contention "that the Assessment was adopted as the official agency position," the court finds 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."  The court also finds that "[p]laintiff's remaining arguments for why the Court should not allow defendant to invoke FOIA Exemption 5 to withhold the Assessment are unpersuasive."  Despite plaintiff's claims to the contrary, the court finds that "the deliberative process privilege protects against disclosure of a document in civil discovery," "Section 1229a(b)(4)(B)[, which] provides that, at the immigration proceeding, an 'alien shall have a reasonable opportunity to examine the evidence against the alien' . . . has no relevance in deciding whether defendant may invoke Exemption 5," "a party does not waive a privilege by intending to take an action in the future; privilege is waived only when that action is actually taken," "defendant has not yet waived the privilege that covers the Assessment, and what it may or may not do in the future does not operate as estoppel," and "[defendant's] training manuals alert [asylum officers] to the fact that an asylum applicant 'may submit ' a FOIA request to obtain the Assessment[, but] do not indicate that the request will be honored without contest."
   
• Procedural Considerations, "Reasonably Segregable" Obligation:  The court finds that, "[a]fter reviewing the Assessment in camera, . . . the first six paragraphs simply recite and summarize the facts that plaintiff presented to the [asylum officer] during his asylum application interview."  The court explains that "[t]hose paragraphs do not include any analysis or impressions, and they do not reflect the [asylum officer's] deliberative process."  The court holds that "[t]he remaining portions of the Assessment, however, are properly withheld under Exemption 5."