### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 1840

H EARTLAND A LLIANCE N ATIONAL I MMIGRANT J USTICE

C ENTER

, Plaintiff

‐ Appellant

,

v.

U.S. D EPARTMENT OF H OMELAND S ECURITY

, Defendant

‐ Appellee

.

_______________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 9692

— Charles R. Norgle

, Judge

.

____________________

A RGUED S EPTEMBER 28, 2016

— D ECIDED O CTOBER 21, 2016

____________________

Before P OSNER

, F LAUM

, and M ANION

, Circuit Judges

.

P OSNER

, Circuit Judge

. Heartland Alliance’s National Im

‐ migrant Justice Center (sometimes referred to as Heartland

Alliance National Immigration Justice Center—we’ll just call

it the Center) is, we read on its website, www.immigrant

justice.org/about

‐ nijc (visited October 19, 2016), “dedicated

to ensuring human rights protections and access to justice2 No. 16

‐ 1840

for all immigrants, refugees and asylum seekers.

[The Center] provides direct legal services to and advocates

for these populations through policy reform, impact litiga

‐

tion, and public education. Since its founding three decades

ago, [the Center] has been unique in blending individual cli

‐

ent advocacy with broad

‐ based systemic change.” In the fall

of 2011 the Center submitted to the Department of Home

‐

land Security (and to other federal agencies as well, but we

can ignore them) a request under the Freedom of Infor

‐

mation Act, 5 U.S.C. § 552, for information relating to Tier III

terrorist organizations, defined by the Immigration and Na

‐ tionality Act in 8 U.S.C. § 1182(a)(3)(B)(vi)(III). The Depart

‐

ment provided only some of the information requested by

the Center, so the Center brought this suit to enjoin the De

‐

partment from withholding the other information that the

Center had sought—the names of what are referred to as

“Tier III terrorist organizations.” Membership in any of the

tiers makes one inadmissible to the United States, with nar

‐

row exceptions.

Tier I and Tier II organizations are publicly identified ter

‐

rorist groups such as ISIS and al

‐ Qaeda. Tier III organiza

‐

tions are defined in 8 U.S.C. § 1182(a)(3)(B)(vi)(III) as any

group of two or more people that engages in terrorist activi

‐

ty (as defined in 8 U.S.C. § 1182(a)(3)(B)(iv)), even if their

terrorist activity is conducted exclusively against regimes

that are enemies of the United States. Tier III organizations

tend to have a lower profile than Tier I’s or Tier II’s, not only

because the government does not publish their names but

also because they tend to be groups about which the U.S.

government does not have good intelligence, making it es

‐

sential that the Department be able to obtain information

about them during screening interviews that are as focusedNo. 16

‐ 1840 3

and complete as possible. The district judge granted sum

‐

mary judgment for the Department on the ground that the

names of the Tier III organizations are protected from disclo

‐

sure under the Freedom of Information Act by the Act’s 7(E)

Exemption, 5 U.S.C. § 552(b)(7)(E). The judge then dismissed

Heartland’s suit with prejudice, precipitating this appeal.

The exemption embraces “records or information com

‐ piled for law enforcement purposes, but only to the extent

that the production of such law enforcement records or in

‐

formation

... would disclose techniques and procedures for

law enforcement investigations or prosecutions, or would

disclose guidelines for law enforcement investigations or

prosecutions if such disclosure could reasonably be expected

to risk circumvention of the law.” The Center contends not

without reason that names of organizations are not “guide

‐

lines.” We are puzzled by the amount of space in its brief the

government devotes to trying to show that they are “guide

‐

lines.” Our puzzlement derives from our inability to see

what difference it makes whether the names are or are not

guidelines given that the heart of the exemption, at least so

far as relates to this case, lies in its authorizing the govern

‐

ment not to “disclose techniques and procedures for law en

‐

forcement investigations or prosecutions.”

The government’s unwillingness to turn over the names

of Tier III organizations to the Center—which remember in

‐

tends to publicize them if it gets its hands on them—rests on

a combination of two concerns, both encompassed by the

passage in the exemption that we just quoted. The first con

‐

cern is implicit in the statutory definition of a Tier III organi

‐

zation—“a group of two or more individuals

... which en

‐

gages in” specified terrorist activities that involve acts of vio

‐4 No. 16

‐ 1840

lence, 8 U.S.C. § 1182(a)(3)(B)(vi)(III), making it more likely

than in the case of other asylum seekers that if admitted to

the United States they would commit violent or otherwise

unlawful acts. Second, as explained in the government’s

brief, “an alien who becomes aware that a particular organi

‐

zation has been found to fall within the definition of a Tier

III organization will have a very strong incentive to falsify or

misrepresent any and all encounters, activities, or associa

‐

tions that he or she may have had with that organization.” If

the alien doesn’t know that a terrorist organization that he

has belonged to, been affiliated with, or maybe simply has

provided supplies or money to, has been identified by our

government as a terrorist organization, he is likely to be less

guarded in answering questions about his activities in or as

‐

sociations with the organization. But if he knows that the or

‐ ganization he belonged to or was associated with is deemed

a terrorist organization, he is likely to deny having ever had

any connection to it or even having ever heard of it. And if his

denials are believed he may—even if he is a past and pro

‐ spective future terrorist—not only escape the government’s

net but also cost the government an opportunity to obtain

information about the organization that might in the future

help in identifying terrorists. The withholding of the name of

a terrorist organization from an alien who is being ques

‐

tioned is thus a technique of a law enforcement investigation

that is squarely within the 7(E) exemption.

The Center argues that “no knowing terror affiliate will

disclose his or her terror affiliation,” and so the government

will learn nothing less from its questioning of aliens if the

names were publicized. Well obviously an alien seeking asy

‐

lum in the United States is not going to tell the government,

in response to the question whether he has ever belonged toNo. 16

‐ 1840 5

a terrorist organization, that he did, and it was called [what

‐

ever]. But that would be dumb interrogation. He’ll be asked

what he knows about terrorist activities in whatever region

he’s from, and in an effort to demonstrate cooperation he

may offer information about some terrorist groups—and one

of them may be one he has had dealings with. If the gov

‐

ernment is required to name all terrorist groups at the Tier

III level this type of questioning will be ineffectual.

We learn in the Center’s reply brief that its primary con

‐

cern is not with names but with the Tier III category itself,

for it says for example that “the designation of Tier III organ

‐

izations is often doubtful.” It hopes that if it can obtain the

names of all the organizations—its goal in this litigation—it

will be able to discredit some or perhaps many of them.

Deeply distrustful of the U.S. government, by the tone and

content of its briefs the Center signals its disbelief that the

government has secrets worth keeping from asylum seekers

and their helpers (such as the Center), but it does not explain

what the government would gain by pretending that harm

‐

less organizations are actually terrorist groups. The govern

‐

ment makes mistakes, but the Center has not shown that

they’re willful, or that Exemption 7(E), on which this litiga

‐

tion pivots, is either invalid—in fact the Center concedes that

the exemption is valid—or inapplicable to the withheld

names.

The judgment of the district court is

A FFIRMED

.6 No. 16

‐ 1840

M ANION

, Circuit Judge

, concurring in the judgment. Under

the Freedom of Information Act, Heartland Alliance’s Na

‐

tional Immigrant Justice Center seeks the release of docu

‐

ments relating to the denial of entry into the United States of

certain individuals. In particular, it seeks the release of a list

of the Tier III terrorist organizations that it claims is used to

reject immigration applications. 8 U.S.C.

§ 1182(a)(3)(B)(vi)(III). For its part, the government claims

that the release of some or all of these organizations’ names is

exempted from FOIA as law enforcement “guidelines,” the

release of which would facilitate the circumvention of our na

‐

tion’s immigration laws. This claim, if true, would allow the

government to claim the protection of exemption 7(E), and re

‐

fuse to release the list of these names. 5 U.S.C. § 552(b)(7)(E).

Because the government has demonstrated an adequate

factual basis for its assertion that disclosure of these organi

‐

zations could lead to circumvention of our nation’s immigra

‐

tion laws, I concur in the judgment. Enviro Tech Int’l

, 371 F.3d

370, 373 (7th Cir. 2004).

I write separately for two reasons. First, we need not go

beyond affirming the decision of the district court. It properly

granted summary judgment on the grounds that the list of

Tier III names was a guideline within the meaning of 7(E).

Disclosing the names risked allowing terrorists to circumvent

the laws. But our court goes on to hold that the names are law

enforcement “techniques” akin to the use of wiretapping in

drug trafficking investigations, exempt from disclosure under

7(E) on that basis. That leaves us with no better guidance for

what constitutes a “technique” or a “guideline” under 7(E).No. 16

‐ 1840 7

At oral argument, the government noted plausible foreign

relations grounds for the government withholding this infor

‐

mation under other FOIA exemptions. Specifically, it noted

that U.S. government relations with Tier III organizations

might change on short notice, and that revealing certain Tier

III organizations might have foreign policy ramifications.

What one day might be an allied Christian militia fighting

against the Islamic State (ISIS) might the next day be our na

‐

tion’s enemy, and while not rising to the level of a Tier I or II

organization, might fall under Tier III. All of this suggests that

the government has, in our nation’s FOIA law, adequate al

‐

ternative claims for exemption that it chose to avoid, so there

is no need to broadly construe 7(E).

I write separately for a second, critical reason, which is my

concern about the apparent lack of Syrian Christians as a part

of immigrants from that country. It is possible that our case

bears a direct link to this enigma.

It is well

‐ documented that refugees to the United States

are not representative of that war

‐ torn area of the world. Per

‐ haps 10 percent of the population of Syria is Christian, and

yet less than one

‐ half of one percent of Syrian refugees admit

‐

ted to the United States this year are Christian. 1 Recognizing

the crisis in Syria, the President in 2015 set a goal of resettling

10,000 refugees in the United States. And in August the gov

‐

ernment reached this laudable goal. And yet, of the nearly

11,000 refugees admitted by mid

‐ September, only 56 were

1 Stephen Dinian, U.S. accepts record number of Syrian refugees in June

despite terrorist screening worries

, W ASH

. T IMES

, June 30, 2016, available at

http://m.washingtontimes.com/news/2016/jun/30/us

‐ accepts

‐ record

‐

number

‐ of

‐ syrian

‐ refugees

‐ in

‐ jun/#!.8 No. 16

‐ 1840

Christian. To date, there has not been a good explanation for

this perplexing discrepancy.

This is not to suggest that any refugee group is more or

less welcome: quite the contrary. The good people of this

country routinely welcome immigrants from all over the

world. But in a democracy, good data is critical to public de

‐

bate about national immigration policy. When we demand

high evidentiary burdens for states seeking to keep their citi

‐

zens safe, and then prevent the states from obtaining that ev

‐

idence, we create a Catch

‐ 22. 2

At oral argument the government explicitly noted that al

‐

lies of the United States today might become enemies tomor

‐

row, and vice versa: groups might fall in and out of the Tier

III designation. Because none of this is public, it is impossible

to know if this is the major reason for the lack of Syrian Chris

‐

tian immigrants to the United States. It is at least possible that

incidental affiliation with some Christian militia could lead an

immigration officer to deny entry to Syrians on this basis.

That would be a dubious consequence.

And yet, Congress, through the exemptions to FOIA, has

consciously made the decision to limit what governmental in

‐

formation is available to the public. If Congress is concerned

about how immigration officers are making their decisions re

‐

lated to the designation and application of the Tier III terrorist

organization affiliation, Congress has the authority to act.

Congress has its own oversight capabilities and subpoena

2 Exodus Refugee Immigration v. Pence

, No. 16

‐ 1509 (7th Cir. Oct. 3,

2016), available at http://media.ca7.uscourts.gov/cgi

‐ bin/rssExec.pl?Sub

‐ mit=Display&Path=Y2016/D10

‐ 03/C:16

‐ 1509:J:Pos

‐ ner:aut:T:fnOp :N:1838881:S:0.No. 16

‐ 1840 9

power, and Congress could choose to amend our nation’s

sunshine laws or our immigration laws. Until that time, how

‐

ever, many of us remain in the dark as a humanitarian catas

‐ trophe continues.