UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

AMERICAN IMMIGRATION )

LAWYERS ASSOCIATION )

)

Plaintiff, )

)

v. ) Civ. Action No. 10-1224 (EGS)

)

UNITED STATES DEPARTMENT OF )

HOMELAND SECURITY, et al., )

)

Defendants. )

 )

MEMORANDUM OPINION

Plaintiff American Immigration Lawyers Association (“AILA”

or “plaintiff”) brings this action against the United States 

Department of Homeland Security (“DHS”) and the United States 

Citizenship and Immigration Services, a DHS subdivision (“USCIS” 

collectively, “defendants”) under the Freedom of Information Act 

(“FOIA”), seeking the release of information withheld by the 

USCIS.

Pending before the Court are the parties’ cross-motions for 

summary judgment. Plaintiff principally argues that the USCIS 

waived its right to withhold or redact certain information 

because that information is in the public domain, and that even 

if waiver did not occur, certain material was improperly 

withheld because FOIA exemption 7(E) does not apply to those 

documents. See 5 U.S.C. § 552(b)(7)(E). In a cross-motion for 
2

summary judgment, the USCIS disputes plaintiff’s allegations of 

waiver, and argues that all withheld material was properly 

exempt from disclosure pursuant to several FOIA exemptions, 

including 7(E).

Upon careful consideration of the motions, the responses 

and replies thereto, the applicable law, and the entire record, 

the Court hereby GRANTS in part the plaintiff’s motion for 

summary judgment and DENIES defendants’ cross-motion for summary 

judgment without prejudice. 

I. BACKGROUND

Plaintiff AILA is an association of over 11,000 attorneys 

and law professors who practice and teach immigration law. 

Plaintiff’s Memorandum in Support of its Motion for Summary 

Judgment (“Pl.’s Br.”), Docket No. 23-2, at 7. Defendant USCIS 

is the agency that oversees lawful immigration to the United 

States, and is charged with disseminating information regarding 

immigration issues, granting immigration and citizenship 

benefits, promoting awareness and understanding of citizenship, 

and ensuring the integrity of the United States immigration 

system. Defendants’ Memorandum of Points and Authorities in 

Support of Cross-Motion for Summary Judgment (“Defs.’ Br.”), 

Docket No. 25-2, at 2. Among its responsibilities, the USCIS 

processes H-1B temporary visa petitions filed by United States 

employers seeking to hire non-immigrant alien workers on a 
3

temporary basis. Defs.’ Br. at 2. The USCIS carries out this 

function pursuant to the Immigration and Nationality Act 

(“INA”), 8 U.S.C. § 101(a)(15)(H)(i)(b), which provides for the 

admission into the United States of temporary workers to perform 

services in a specialty occupation. Pl.’s Br. at 2; Defs.’ Br. 

at 2. 

A. Plaintiff’s FOIA Requests

Beginning in 2009, AILA submitted three FOIA requests to 

the USCIS. The requests were processed by the USCIS’s National 

Records Center (“NRC”), in compliance with DHS implementing 

regulations found at 6 C.F.R. Part 5 and Management Directive 

No. 0460.1. Defs.’ Statement of Material Facts (“Defs.’ SMF”), 

Docket No. 25-3, ¶ 1. 

By letter dated February 6, 2009, Robert Deasy, AILA’s 

Director of Liaison and Information, submitted a FOIA request 

(“February 6 Request”) to the USCIS on behalf of AILA for: 

Copies of any and all guidance, including, but not 

limited to memoranda, standard operating procedures, 

and templates used for Requests for Evidence regarding 

adjudicating H-1B petitions issued as a result of, in 

connection with, in light of, or related to the 

Benefits Fraud [Compliance] Assessment Report.

Defs.’ SMF ¶ 7. This request was assigned control number 

NRC2009007831. Defs.’ SMF ¶ 8. 

By letter dated March 18, 2009, AILA submitted a second

FOIA request (“March 18 Supplemental Request”), in which it 
4

requested a document entitled “H1-B Processing Fraud Referral 

Sheet” (“H1-B Petition Fraud Referral Sheet”) and petitioned for 

expedited processing. Defs.’ SMF ¶ 9. This request was 

considered a supplement to the February 6 Request and was 

included within it for purposes of processing. See id. ¶¶ 9, 

13. The request for expedited processing was denied. Defs.’ 

SMF ¶ 13.

On April 13, 2009, AILA submitted a third FOIA Request 

(“April 13 Request”) to the USCIS, this time seeking “The 

Compliance Review Worksheet Mentioned in Comment Request for 

Compliance Review Worksheet, 74 FR 15999 (April 8, 2009)” 

(“Compliance Review Report”). Defs.’ SMF ¶ 14. The NRC 

received the April 13 Request on April 27, 2009. Defs.’ SMF ¶ 

15. The request was assigned control number NRC2009023483. 

Defs.’ SMF ¶ 16. On May 8, 2009, AILA submitted a request to 

expedite the April 13 Request, which was denied by letter on May 

28, 2009. Defs.’ SMF ¶¶ 17, 18. 

Several documents that resulted from USCIS’s searches1 are 

at issue in this case. 

 1 Although plaintiff initially challenged the adequacy of the 

searches conducted by USCIS, that issue is not raised by 

plaintiff on summary judgment and plaintiff does not dispute

defendants’ argument in their cross-motion that the searches 

were proper. 
5

1. Compliance Review Report

One two-page, preprinted USCIS form entitled “Compliance 

Review Report” was deemed responsive to AILA’s April 13 Request. 

Defs.’ SMF ¶ 52; Substitute Declaration of Jill A. Eggleston 

(“Sub. Eggleston Decl.”), Docket No. 25-5, ¶ 42.2 On June 9, 

2009, the USCIS determined that the document should be withheld 

in full pursuant to FOIA exemptions (b)(2)3 and (b)(7)(E). 

Defs.’ SMF ¶ 53. On August 7, 2009, AILA administratively 

appealed the decision, which was affirmed on February 18, 2010. 

Sub. Eggleston Decl. ¶¶ 38,40. At some time after this 

litigation was commenced on July 20, 2010, USCIS made the 

determination that some of the information withheld could be 

disclosed, and the USCIS released the document in redacted form 

on October 27, 2010. Defs.’ SMF ¶¶ 57, 59; Watkins Decl., Ex.

12. USCIS also released a revised index on that date, pursuant 

to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), explaining

USCIS’s basis for withholding portions of the document. See 

October 27, 2010 Vaughn Index (“Oct. 27, 2010 Vaughn Index”), 

 2 The original Declaration of Jill A. Eggleston was filed in 

connection with defendants’ initial motion for summary judgment, 

see Docket No. 11-5, and is not part of the record for the 

renewed motions for summary judgment. 

3 Following the Supreme Court’s decision in Milner v. Dep’t 

of the Navy, 131 S. Ct. 1259 (2011), defendants have withdrawn 

all assertions of exemption b(2) in connection with plaintiff’s 

FOIA Requests. Defs.’ Br. at 11, n.10; Sub. Eggleston Decl. ¶ 

44, n.4. 
6

Ex. 21 to the Declaration of Seth A. Watkins in Support of 

Plaintiff’s Motion for Summary Judgment, (“Watkins Decl.”), at 

4.

2. Neufeld Memorandum

A four-page memorandum by Donald Neufeld, Acting Associate 

Director of Domestic Operations, regarding H-1B fraud 

initiatives (“Neufeld Memorandum”) was determined to be 

responsive to the February 6 Request and the March 18 

Supplemental Request. Sub. Eggleston Decl. ¶ 41. The NRC 

initially determined that this document should be withheld in 

its entirety pursuant to FOIA exemptions (b)(2), (b)(5), and 

(b)(7)(E). Defs.’ SMF ¶ 51. On March 11, 2010, AILA 

administratively appealed this decision. Defs.’ SMF ¶ 45. The 

appeal was still pending when this action was filed. 

At some time after this litigation was commenced on July 

20, 2010, USCIS made the determination that some of the 

information withheld could be disclosed. Defs.’ SMF ¶ 54. 

Much, but not all, of the information contained in the Neufeld 

Memorandum had been publicly disclosed with the publication of 

the H-1B Benefit Fraud and Compliance Assessment (“BFCA 

Report”), which is posted on the internet. Defs.’ SMF ¶¶ 54-55; 

Watkins Decl., Ex. 2. Moreover, the Neufeld Memorandum was 

issued in September 2008 as a final agency determination, 
7

rendering FOIA exemption (b)(5) inapplicable as authority for 

withholding that document from public viewing. Defs.’ SMF ¶ 56. 

The USCIS therefore released the document in redacted form on 

October 27, 2010, and the USCIS’s basis for withholding the 

document was explained in the October 27 Vaughn Index. Defs.’ 

SMF ¶¶ 57, 59; Oct. 27, 2010 Vaughn Index, Watkins Decl., Ex. 

21, at 1. 

3. H-1B Petition Fraud Referral Sheet

A two-page pre-printed USCIS form entitled “H-1B Petition 

Fraud Referral Sheet” was also determined to be responsive to 

the February 6 Request and March 18 Supplemental Request. Sub. 

Eggleston Decl. ¶ 41. NRC made the initial determination that 

the document should be withheld pursuant to FOIA exemptions 

(b)(2), (b)(5), and (b)(7)(E) and that there were no reasonably 

segregable portions for release. Defs.’ SMF ¶¶ 43-44. On 

March 11, 2010, AILA administratively appealed that decision. 

Defs.’ SMF ¶ 45. The appeal was still pending when this action 

was filed.

At some time after this litigation was commenced on July 

20, 2010, USCIS made the determination that some of the 

information withheld could be disclosed, and the USCIS released 

the document in redacted form on October 27, 2010. Defs.’ SMF 

¶¶ 57, 59. The October 27, 2010 Vaughn Index explained the 
8

basis for withholding portions of the document. Oct. 27, 2010 

Vaughn Index, Watkins Decl., Ex. 21, at 2.

B. Initial Cross-Motions for Summary Judgment

After releasing the redacted versions of certain documents, 

defendants moved for summary judgment on December 10, 2010, 

asserting that they had satisfied all of their obligations with 

respect to AILA’s FOIA requests. See Docket No. 11. Plaintiff 

filed its opposition to defendants’ motion for summary judgment 

and in support of plaintiff’s cross-motion for summary judgment 

on January 14, 2011. Docket No. 13. Plaintiff challenged, 

among other things, the adequacy of defendants’ searches. When 

the USCIS reviewed plaintiff’s summary judgment filing, it 

determined it may have missed documents potentially relevant to 

plaintiff’s requests. Defs.’ SMF ¶ 60. With plaintiff’s 

consent, the USCIS commenced a renewed search for documents 

responsive to AILA’s FOIA requests on March 29, 2011. Defs.’ 

SMF ¶ 61. USCIS made a subsequent production of documents to 

plaintiff on May 9, 2011 and submitted a Supplemental Vaughn

Index describing the materials withheld. May 9, 2011 Vaughn

Index (“May 9, 2011 Vaughn Index”), Watkins Decl., Ex. 20; see 

Plaintiff’s Statement of Material Facts (“Pl.’s SMF”) ¶ 21. 

Plaintiff refers to several of the documents produced on May 9, 

2011 as the “newly-identified documents.” 
9

C. Renewed Cross-Motions for Summary Judgment

AILA filed a renewed motion for summary judgment on May 31, 

2011. In its motion, AILA alleges that USCIS improperly invoked 

exemption 7(E) as to several documents that were produced with 

redactions, and that USCIS has waived any ability to withhold 

the documents because they are in the public domain. Defendants 

filed a cross-motion for summary judgment, asking the Court to 

determine that they satisfied their obligations under FOIA as to 

all documents produced or withheld, that they properly invoked 

exemptions, and that they did not waive its ability to invoke 

the exemptions because of information that exists in the public 

domain. 

II. LEGAL FRAMEWORK

A. Rule 56

Pursuant to Federal Rule of Civil Procedure 56, summary 

judgment should be granted if the moving party has shown that 

there are no genuine issues of material fact and that the moving 

party is entitled to judgment as a matter of law. See Fed. R. 

Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); 

Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 

2002). In determining whether a genuine issue of fact exists, 

the court must view all facts in the light most favorable to the 

non-moving party. See Matsushita Elec. Indus. Co. v. Zenith 
10

Radio Corp., 475 U.S. 574, 587 (1986). Likewise, in ruling on 

cross-motions for summary judgment, the court shall grant 

summary judgment only if one of the moving parties is entitled 

to judgment as a matter of law upon material facts that are not 

genuinely disputed. See Citizens for Responsibility & Ethics in 

Wash. v. Dep’t of Justice, 658 F. Supp. 2d 217, 224 (D.D.C. 

2009) (citing Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir. 

1975)). 

B. FOIA

FOIA requires agencies to disclose all requested agency 

records, 5 U.S.C. § 552(a), unless one of nine specific 

statutory exemptions applies, id. § 552(b). It is designed to 

“pierce the veil of administrative secrecy and to open agency 

action to the light of public scrutiny.” Dep’t of Air Force v. 

Rose, 425 U.S. 352, 361 (1976) (citations omitted). “Given the 

FOIA’s broad disclosure policy, the United States Supreme Court 

has ‘consistently stated that FOIA exemptions are to be narrowly 

construed.’” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) 

(quoting Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988)). 

“FOIA’s ‘strong presumption in favor of disclosure places 

the burden on the agency to justify the withholding of any 

requested documents.” Dep’t of State v. Ray, 502 U.S. 164, 173 

(1991). The government may satisfy its burden of establishing 
11

its right to withhold information from the public by submitting 

appropriate declarations and, where necessary, an index of the 

information withheld. See Vaughn v. Rosen, 484 F.2d 820, 827-28 

(D.C. Cir. 1973). “If an agency’s affidavit describes the 

justifications for withholding the information with specific 

detail, demonstrates that the information withheld logically 

falls within the claimed exemption, and is not contradicted by 

contrary evidence in the record or by evidence of the agency’s 

bad faith, then summary judgment is warranted on the basis of 

the affidavit alone.” ACLU v. Dep’t of the Defense, 628 F.3d 

612, 619 (D.C. Cir. 2011); see id. (an agency’s justification 

for invoking a FOIA exemption is sufficient if it appears 

‘logical’ or ‘plausible’) (internal citations omitted).

III. DISCUSSION

In its motion for summary judgment and its response to 

defendants’ motion, plaintiff primarily challenges defendants’ 

redaction of three documents: (1) the Compliance Review Report 

Form; (2) The Neufeld Memorandum; and (3) the H-1B Petition 

Fraud Referral Sheet. Plaintiff also argues that defendants 

waived the right to claim that certain “newly-identified 

documents” that were produced on May 9, 2011 are properly 

withheld under Exemption 7(E) because they purportedly contain 
12

publicly-disclosed information, but plaintiff does not challenge 

the applicability of Exemption 7(E) to those documents. 

Defendants, in their cross-motion for summary judgment, 

seek summary judgment as to the entirety of their searches and 

subsequent responses to plaintiff’s FOIA Requests. Defendants 

argue that all exemptions were properly invoked and that all 

reasonably segregable information was disclosed. Plaintiff, in 

its opposition, does not dispute the withholding of material

pursuant to exemption 7(E) other than in connection with the 

Compliance Review Report, the Neufeld Memorandum, and the H-1B 

Petition Fraud Referral Sheet. Plaintiff also does not respond 

to defendants’ arguments regarding the appropriateness of 

defendants’ searches as a whole, or the withholding of documents 

pursuant to exemptions b(5) or b(6). Therefore, those points 

are deemed conceded. 

Accordingly, the issues before the Court are 1) whether 

defendants waived their right to withhold all or portions of the 

Compliance Review Report, the Neufeld Memorandum, the H-1B 

Petition Fraud Referral Sheet, and certain “newly-identified 

documents” under the “public domain doctrine”; 2) whether 

defendants properly sought to withhold the Compliance Review 

Report, the Neufeld Memorandum, and the H-1B Petition Fraud 

Referral Sheet under Exemption 7(E); and 3) whether defendants’ 
13

Vaughn indexes and the Substitute Eggleston Declaration properly 

indicate whether all reasonably segregable information has been 

released. 

A. Waiver/Public Domain Doctrine

The threshold issue before the Court is whether the USCIS 

waived its right to invoke Exemption 7(E) and withhold redacted 

material in several documents it produced pursuant to the AILA’s 

FOIA Requests. The public domain doctrine sets a high standard 

that a plaintiff must meet in order to establish that the 

government has waived an otherwise-valid FOIA exemption. 

“[FOIA] bars the courts from prying loose from the government 

even the smallest bit of information that is properly 

classified.” Afshar v. Dep’t of State, 702 F.2d 1125, 1130

(D.C. Cir. 1983) (Exemptions 1&3). “Under [the] public domain 

doctrine, materials normally immunized from disclosure under 

FOIA lose their protective cloak once disclosed and preserved in 

a permanent public record.” Cottone v. Reno, 193 F.3d 550, 554 

(D.C. Cir. 1999) (citing Niagra Mohawk Power Corp. v. Dep’t of 

Energy, 169 F.3d 16, 19 (D.C. Cir. 1999) (Exemption 4)); Public 

Citizen v. Dep’t of State, 11 F.3d 198, 201-03 (D.C. Cir. 1993) 

(Exemption 1); Davis v. Dep’t of Justice, 968 F.2d 1276, 1276 

(D.C. Cir. 1992) (Exemptions 3 & 7(C)); Ashfar, 702 F.2d at 

1130-34. The logic of this doctrine is that “where information 
14

requested ‘is truly public, the enforcement of an exemption 

cannot fulfill its purposes.’” Id. (quoting Niagra Mohawk, 169 

F.3d at 19). “[A] plaintiff asserting that information has been 

previously disclosed bears the initial burden of pointing to 

specific information in the public domain that duplicates that 

being withheld.” Public Citizen, 11 F.3d at 201 (citing Afshar, 

702 F.2d at 1130). The D.C. Circuit has held that “when 

information has been ‘officially acknowledged,’ its disclosure 

may be compelled even over an agency’s otherwise valid exemption 

claim. Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). 

The Court identified three requirements to determine whether the 

government has waived its right to withhold the sought 

information by officially acknowledging it. Specifically, 

plaintiff must establish that the information requested is as 

specific as the information previously released, must match the 

information previously disclosed, and must have already been 

made public through an official and documented disclosure. 

Fitzgibbon v. CIA, 911 F.2d at 765. 

1. Compliance Review Report Form

Plaintiff argues that the Compliance Review Report Form

released in redacted form should be released in full because the 

redacted portions are in the public domain. See Pl.’s Br. at 12 

(citing Watkins Decl., Ex. 12). The agency produced a redacted 
15

version to AILA on October 27, 2010, asserting Exemption 

(b)(7)(E) as to the redactions. See Watkins Decl., Ex. 12; see 

Oct. 27, 2010 Vaughn Index, Watkins Decl. Ex. 21. 

In support of its argument that the redacted portions of 

the Compliance Review Report Form are in the public domain, 

plaintiff cites to four versions of instructions purportedly 

used by on-site investigators to complete the Compliance Review 

Report Form. Plaintiff argues that these instructions provide 

the same information, and indeed more information, than the 

Compliance Review Report. Plaintiff argues that the public 

availability of these instructions prevent USCIS from seeking to 

withhold the information in the Compliance Review Report Form 

under Exemption (b)(7)(E). Pl.’s Br. at 12-14. The versions of 

the instructions include (1) a version that was included in the 

appendix of a book published by Thompson/West (Watkins Decl., 

Ex. 7); (2) a version of the instructions dated December 5, 2008 

that is available on the internet (Watkins Decl., Ex. 8); (3) a

version of the instructions dated July 22, 2009 that was

produced on May 9, 2011 in response to AILA’s FOIA Requests 

(Watkins Decl., Ex. 29); and (4) a general description of the 

information sought by inspectors during site visits that is 

available on the USCIS’s website. Watkins Decl., Ex. 6. 

Defendants argue that AILA has failed to establish that any 

of the instructions “match” the information that USCIS has 
16

withheld. The Court agrees. AILA has not established that any 

of these alleged instructions specifically correspond to the 

version of the form that it seeks to compel USCIS to produce in 

full, which bears an apparent date of June 19, 2009. See

Watkins Decl., Ex. 12. The instructions published by 

Thompson/West bear no date, and the other versions of the 

instructions are dated December 5, 2008 and July 22, 2009, 

respectively. Plaintiff has failed to persuade the Court that 

the date is not relevant to the public disclosure analysis. 

The general description of site visits (Watkins Decl., Ex. 

6) is even less specific than the different versions of the 

instructions, giving the reader only a general overview of the 

process. Accordingly, plaintiff has failed to meet its initial 

burden of pointing to specific information in the public domain 

that duplicates what is being withheld. Public Citizen, 11 F.3d 

at 201 (plaintiff bears burden of pointing to specific 

information in the public domain that duplicates that being 

withheld).4

 4 Because plaintiff has failed to meet its initial burden, 

the Court need not reach the question of whether any of the 

Compliance Review Report Instructions cited by plaintiff were 

publicly disclosed. The Court notes, however, that USCIS has 

conceded that its disclosure of the July 22, 2009 instructions 

in response to AILA’s FOIA Requests was an “official 

disclosure.” Defendants’ Reply to Plaintiff’s Opposition to 

Defendants’ Cross-Motion for Summary Judgment (“Defs.’ Reply”), 

Docket No. 30, at 2. 
17

2. H-1B Petition Fraud Referral Sheet

AILA argues that the H-1B Petition Fraud Referral Sheet, 

which was released to AILA in redacted form, is “fully in the 

public domain” because it is part of a judicial record in 

another litigation. Pl.’s Br. at 14; Watkins Decl., Ex. 11. 

AILA also argues that the document is in the public domain 

because USCIS agreed it did not need to be filed under seal in 

this matter. Pl.’s Br. at 15 (citing Docket No. 16 

(“Defendant’s position is that Exhibit[]...15 is publicly 

available and therefore not appropriately filed under seal.”). 

The parties do not dispute that a version of an H-1B Petition 

Fraud Referral Sheet was filed by USCIS as an exhibit on June 

24, 2010 in the TechServe Alliance v. Napolitano matter. See

Case No. 10 Civ. 00353 (D.D.C.), Docket No. 16, Ex. 1. The 

parties also do not dispute that USCIS agreed that the same 

exhibit did not need to be filed under seal in this matter. See 

Docket No. 16-3. The parties do dispute, however, the effect of 

these filings. 

AILA contends that the filing of the H-1B Petition Fraud 

Referral Sheet by USCIS on a public docket constitutes a “public

disclosure.” In support of its argument, plaintiff cites 

Cottone for the proposition that evidence submitted in court 

becomes part of the public domain under FOIA unless and until 

destroyed or placed under seal. Pl.’s Br. at 14-15 (citing 
18

Cottone, 193 F.3d at 554). Defendants argue that the exhibit

filed in TechServe was an earlier version of the document than 

the one at issue in this litigation. Defs.’ Br. at 25. 

Defendants further note that the document was attached to 

USCIS’s filing because it had been attached to the FOIA request 

made by the plaintiff in that case, and was filed by USCIS in 

that lawsuit to support USCIS’s arguments that it had properly 

asserted exemptions under FOIA, which would distinguish it from 

a willful disclosure. See id. Defendants note that a notation 

on the bottom of the document indicates that it had been 

obtained from an archive entitled “AILA InfoNet,” rather than 

from any official USCIS source. Id. 

The Court agrees with Defendants on this issue. As with 

the Compliance Review Report Form discussed previously, the 

Court finds that because the fraud referral form filed in the 

TechServe matter was a different version than the one at issue 

in this case, AILA has failed to meet its burden of pointing to 

specific information in the public domain that duplicates what 

is being withheld. See Public Citizen, 11 F.3d at 201. 

Moreover, even if AILA could establish that the form was the 

same form at issue in this matter, AILA has not established that 

the form was made public through an official disclosure. See 

Fitzgibbon, 911 F.2d at 765. Indeed, it appears the only reason 

the form was filed on the public docket in TechServe is because 
19

it was attached to the plaintiff’s FOIA request in that matter, 

which USCIS then filed as an exhibit to a declaration explaining 

the steps taken to respond to that plaintiff’s FOIA request. 

AILA has not persuaded the Court that the attachment of the FOIA 

request (and the H-1B Fraud Referral Sheet) was done for the 

purpose of any desire to officially disclose the document; to 

the contrary, it appears that the document was filed in support 

of USCIS’s arguments in that case that it had responded 

appropriately to the FOIA requests it had received. See Frugone 

v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999) (“[W]e do not deem 

‘official’ a disclosure made by someone other than the agency 

from which the information is being sought.”) (citations 

omitted); Valfells v. CIA, 717 F. Supp. 2d 110, 117 (D.D.C. 

2010) (noting that FOIA plaintiffs must point to information in 

the public domain that was previously disclosed by the same 

agency). For the same reasons, the Court is not persuaded that 

USCIS has waived its right to withhold the document based on its 

agreement that the earlier version of the form did not require 

filing under seal because it was part of the record in the 

TechServe matter. Therefore, the Court finds that no official 

disclosure occurred, and defendants did not waive their ability 

to claim Exemption 7(E) for the H-1B Petition Fraud Referral 

Sheet. 
20

3. Neufeld Memorandum

AILA contends that “[a]t least some of the redacted 

content” in the Neufeld Memorandum is also in the public domain 

and should be released. Pl.’s Br. at 15 (citing Watkins Decl., 

Exs. 10 & 21). Specifically, AILA contends that the BFCA Report

serves as the basis for the Neufeld Memorandum. Pl.’s Br. at 

16. The parties do not dispute that the BFCA Report has been 

publicly disclosed. Defs.’ SMF ¶ 55. Indeed, USCIS stated that 

it reconsidered its withholding of the Nuefeld Memorandum 

specifically because of the public availability of the BFCA 

Report. Defs.’ SMF ¶¶ 54-55.

AILA contends that “fraud indicators” redacted in the 

Neufeld Memorandum necessarily include the “fraud indicators” 

discussed in the BFCA Report.5

 AILA also claims that the Neufeld 

Memorandum makes reference to the BFCA Report “when introducing 

 5 The final page of the BFCA Report identifies several 

primary fraud or technical violation(s) indicators: (1) firms 

with 25 of fewer employees have higher rates of fraud or 

technical violation(s) than larger-sized companies; (2) firms 

with an annual gross income of less than $10 million have higher 

rates of fraud or technical violation(s) than firms with annual 

gross income greater than $10 million; (3) firms in existence 

less than 10 years have higher incidences of fraud or technical 

violation(s) than those in existence for more than 10 years; (4) 

H-1B petitions filed for accounting, human resources, business 

analysts, sales and advertising occupations are more likely to 

contain fraud or technical violation(s) than other occupational 

categories; and (5) beneficiaries with only bachelor’s degrees 

had higher fraud or technical violation(s) rates than those with 

graduate degrees. Pl.’s SMF ¶ 3. 
21

the guidance concerning fraud indicators.” Pl.’s Br. at 16. 

Defendants argue that AILA’s speculation as to the relationship 

between the BFCA Report and the Neufeld Memorandum falls short 

of the requirement to show that the information in the 

memorandum “matches” or is the specific information included in 

the BFCA Report. Defs.’ Br. at 25-26. The Court agrees. By 

making a general allegation about the relationship between the 

BFCA Report and the Neufeld Memorandum, AILA has fallen far 

short of showing that the redacted material in the Neufeld 

Memorandum is the specific information disclosed in the BFCA 

Report or that it matches the material in the BFCA Report. 

Accordingly, USCIS has not waived its right to claim an 

exemption for this document. See Public Citizen, 11 F.3d at 

201.

4. “Newly-Identified Documents”

Plaintiff’s final argument is that “[t]o the extent 

defendants’ newly-identified documents...also include segregable 

portions which are in the public domain, as discussed above with 

respect to the Neufeld Memorandum, defendants should be ordered 

to release such portions.” Pl.’s Br. at 16. AILA cites 

generally to Exhibits 22 through 25 to the Watkins Declaration, 

which are redacted documents produced by USCIS in response to 

AILA’s FOIA Requests and were reflected in defendants’ May 9, 
22

2011 Vaughn Index. In response, the USCIS argues that AILA has 

failed to point to any redactions in those documents that it 

contends contain information that was officially released by 

USCIS, and AILA also fails to provide any analysis or legal 

argument. The Court agrees. Accordingly, the Court finds that 

AILA has failed to carry its initial burden of showing that the 

specific information contained in any of these documents exists 

in the public domain. See Public Citizen, 11 F.3d at 201.

B. Exemption 7(E)

Having found that no waiver occurred, the Court must now 

determine whether the agency properly withheld and redacted 

material in the Compliance Review Report Form, the H-1B Petition 

Fraud Referral Sheet, and the Neufeld Memorandum pursuant to 

Exemption 7(E).6

 Plaintiff does not challenge the applicability 

of Exemption 7(E) to what it refers to as the “newly-identified 

documents” cited in the May 9, 2011 Vaughn Index. See Watkins 

Decl., Exs. 22-25. 

 6 As discussed more fully below, Exemption 7(E) protects 

records or information compiled for law enforcement purposes 

from disclosure “to the extent that the production of such law 

enforcement records or information . . . would disclose 

techniques and procedures for law enforcement investigations or 

prosecutions if such disclosure could reasonably be expected to 

risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). 
23

1. Defendants’ Stated Exemptions

Defendants have set forth the basis for their exemptions in 

the October 27, 2010 Vaughn Submission. Defendants describe the 

Compliance Review Report as 

a questionnaire that is filled out by USCIS/ICE Site 

Inspectors, documenting their personal observations. 

Items 1-10 are the actual questions asked onsite, and 

provide the foundation for any additional impromptu or 

follow-up questions that might later be asked. More 

important, the decision whether to initiate a more 

scrutinizing investigation is, invariably, based upon 

the recommendation proffered by the author of the 

report. 

Oct. 27, 2010 Vaughn Index, Watkins Decl., Ex. 21 at 4. The 

USCIS explains that it asserts Exemption 7(E) because 

[t]he public disclosure of the questions contained in 

this questionnaire will alert all to the precise 

nature of conduct, behavior, and conditions that will 

draw the attention of law enforcement authorities, and 

instruct those so disposed to simultaneously violate 

the law and avoid detection by adjusting their 

responses to the questions accordingly. Consequently, 

the investigative questions...are eligible for [the 

7(E) Exemption] since their disclosure would impair 

the effectiveness of the fraud detection techniques 

revealed therein. 

Id. 

With respect to the Neufeld Memorandum, USCIS states that 

that the document 

reveals very particular and sensitive criteria (fraud 

indicators) used by adjudicators to determine which 

cases of suspected fraud to refer for further 

investigation . . . . Anyone in possession of this 

document would have, essentially, a roadmap by which 

they could follow to avoid attracting attention and 

close scrutiny by either ‘doctoring’ their H-1B 
24

applications (or associated forms); ‘staging’ places 

of employment; manufacturing employment records; or 

engaging in any number of other ploys designed to 

deceive immigration and law enforcement authorities. 

Id. at 1-2. 

The USCIS describes the H-1B Petition Fraud Referral Sheet 

as the “companion document” to the Neufeld Memorandum, “employed 

to make referrals of suspected fraud cases to the USCIS Center 

Fraud Detection Operation (CFDO).” The USCIS states that the 

exemption applies because the document 

is, literally, a checklist of fraud indicators that 

agency adjudicators are required to strictly adhere to 

in order to ensure that actionable fraud referrals are 

being sent to the Center Fraud Detection Operation 

(CFDO)..... [The document could be used] to determine, 

with surgical precision and consistent accuracy, the 

patterns of conduct and forms of operations to be 

avoided by potential defrauders seeking to skirt 

closer agency scrutiny and escape detention.... 

Accordingly, the document is being withheld to 

preserve the integrity and effectiveness of certain 

techniques and operations of current law enforcement 

significance.

Id. at 3-4. 

2. Exemption 7(E) Generally

Exemption 7(E) protects records or information compiled for 

law enforcement purposes from disclosure “to the extent that the 

production of such law enforcement records or information . . . 

would disclose techniques and procedures for law enforcement 

investigations or prosecutions if such disclosure could 

reasonably be expected to risk circumvention of the law.” 5 
25

U.S.C. § 552(b)(7)(E). Courts have held that information 

pertaining to law enforcement techniques and procedures is 

properly withheld where disclosure reasonably could lead to 

circumvention of laws or regulations. See, e.g., Skinner v. 

Dep’t of Justice, 744 F. Supp. 2d 185, 214 (D.D.C. 2011) (citing 

cases). “[A] highly specific burden of showing how the law will 

be circumvented” is not required; instead, “exemption 7(E) only 

requires that [the agency] ‘demonstrate[] logically how the 

release of [the requested] information might create a risk of 

circumvention of the law.’” Mayer Brown LLP v. IRS, 562 F.3d 

1190, 1194 (D.C. Cir. 2009) (quoting PHE, Inc. v. Dep’t of 

Justice, 983 F.2d 248, 251 (D.C. Cir. 1993)). “If an agency’s 

affidavit describes the justifications for withholding the 

information with specific detail, demonstrates that the 

information withheld logically falls within the claimed 

exemption, and is not contradicted by contrary evidence in the 

record or by evidence of the agency’s bad faith, then summary 

judgment is warranted on the basis of the affidavit alone.” 

ACLU, 628 F.3d at 619. 

While Exemption 7(E)’s protection is generally limited to 

techniques or procedures that are not well-known to the public, 

even commonly known procedures may be protected from disclosure 

if the disclosure could reduce or nullify their effectiveness.

See, e.g., Judicial Watch, Inc. v. Dep’t of Comm., 337 F. Supp. 
26

2d 146, 181 (D.D.C. 2004); see Barnard v. Dep’t of Homeland 

Sec., 598 F. Supp. 2d 1, 23 (D.D.C. 2009) (rejecting plaintiff’s 

argument that because the public is generally aware of security 

clearance procedures including marking of travel documents, use 

of a computer database, and the use of a “no fly” list, agency 

is not required to disclose all details concerning those 

procedures); but see Goldstein v. Office of Indep. Counsel, No. 

87-2028, 1999 WL 570862, *14 (D.D.C. July 29, 1999) (ordering 

disclosure of two documents that were over ten years old and 

discussed law enforcement techniques that had since become more 

widely known). 

Plaintiff makes several general arguments as to why the 

Compliance Review Report Form, the H-1B Petition Fraud Referral 

Sheet, and the Neufeld Memorandum are not properly redacted 

pursuant to Exemption 7(E). AILA principally argues that

because the BFCA Report made public several of the fraud 

indicators, those indicators are no longer exempt from 

disclosure because they are widely known. In support of that 

argument, plaintiff cites to cases that have found Exemption 

7(E) does not cover information that is widely known or that 

constitutes basic law enforcement techniques. Pl.’s Br. at 16-

18. Plaintiff also argues that certain factors, such as gross 

income of a company, the number of employees in the company, and 

the number of years the company has been in existence, do not 
27

“indicate if and how to circumvent agency regulation” and should 

not be exempt. Pl.’s Br. at 18. 

Defendants argue that Exemption 7(E) has been properly 

invoked for all information withheld from AILA. Defendants 

assert that these records fall within the category of 

investigatory and prosecutorial guidelines that courts have

found to be protected under Exemption 7(E). Defs.’ Br. at 18 

(citing PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 250-51 

(D.C. Cir. 1993) (holding that portions of an FBI manual 

describing patterns of violations, investigative techniques, and 

sources of information available to investigators were protected 

by 7(E))). Defendants argue that the application and 

interpretation of fraud indicators is not well known to the 

public and constitutes internal law enforcement data that 7(E) 

was designed to protect. Id. at 20 (citing Barnard, 598 F. 

Supp. 2d at 23. 

The Court agrees with defendants that exemption 7(E) is 

properly invoked as to the Compliance Review Report, the H-1B 

Petition Fraud Referral Sheet, and the Neufeld Memorandum, and 

the Court notes that plaintiff has not challenged any other 

specific documents as improperly withheld under Exemption 7(E). 

The Court finds that defendants have met their burden of 

demonstrating that the disclosure of the fraud indicators 

reasonably could lead to circumvention of laws or regulations. 
28

See Skinner, 744 F. Supp. 2d at 214. Specifically, the Court 

finds that the explanations provided by defendants indicate that 

the particular type of information withheld would provide a 

“roadmap” or “guidance” to those looking to circumvent the law, 

which would thwart future law enforcement efforts. See 

generally Oct. 27, 2010 Vaughn Index, Watkins Decl., Ex. 21.

Furthermore, the Court agrees that plaintiff has not 

rebutted defendants’ argument by establishing that those fraud 

indicators constitute “basic law enforcement techniques” that 

would be excluded from Exemption 7(E). See Barnard, 598 F. 

Supp. 2d at 23. The Court disagrees that factors such as the 

gross income of a company or the length of time a company has 

been in existence are factors that could not logically be used 

to circumvent agency regulation. In addition, the mere fact 

that the public may know about site visits generally, or may 

know some information about fraud indicators does not mean that 

defendants must disclose all details concerning fraud 

indicators. See id. Accordingly, the Court finds that 

defendants have properly asserted Exemption 7(E) with respect to 

the Compliance Review Report, the H-1B Petition Fraud Referral 

Sheet, and the Neufeld Memorandum.
29

C. Segregability

Even after determination that documents are exempt from 

disclosure, FOIA analysis is not properly concluded unless a 

court determines whether “any reasonably segregable portion of a 

record” can “be provided to any person requesting such record 

after deletion of the portions which are exempt.” 5 U.S.C. § 

552(b). “So important is this requirement that ‘[b]efore 

approving the application of a FOIA exemption, the district 

court must make specific findings of segregability regarding the 

documents to be withheld.’” Elec. Frontier Found. v. Dep’t of 

Justice, --- F. Supp. 2d ----, 2011 WL 5966379, *10 (D.D.C. 

2011) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106)). 

The Court errs if it “simply approve[s] the withholding of an 

entire document without entering a finding on segregability or 

the lack thereof.” Powell v. U.S. Bureau of Prisons, 927 F.2d 

1239, 1242 n. 4 (D.C. Cir. 1992) (citations omitted). 

“It has long been the rule in this Circuit that non-exempt 

portions of a document must be disclosed unless they are 

inextricably intertwined with exempt portions.” Mead Data 

Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 

1977). The agency should, for example, “’describe what 

proportion of the information in [the] documents,’ if any, ‘is 

non-exempt and how that material is dispersed through the 

document[s].” Elec. Frontier Found., --- F. Supp. 2d at ----, 
30

2011 WL 5966379, *11 (citing Mead Data Cent., Inc., 566 F.2d 

242, 261 (D.C. Cir. 1977)); see King v. Dep’t of Justice, 830 

F.2d 210, 219 (D.C. Cir. 1987) (Vaughn index must sufficiently 

identify the withheld material to enable the district court to 

make a rational decision whether the withheld material must be 

produced without actually viewing the documents). Where an 

agency has publicly disclosed information that is similar to 

what is being withheld, its Vaughn submission must be 

“sufficiently detailed” to distinguish the withheld information 

from the public information. Army Times Pub. Co. v. Dep’t of 

Air Force, 998 F.2d 1067, 1071-72 (D.C. Cir. 1993). 

Defendants argue that they have “established, with 

reasonable specificity, that responsive documents were redacted 

in part after a line-by-line review and after a determination 

that there were no reasonably segregable portions of documents 

appropriate for release.” Defs.’ Br. at 23 (citing Sub. 

Eggleston Decl. ¶ 60). Defendants conclude that they have 

therefore “complied with [their] duty to segregate exempt from 

non-exempt information.” Id. The Court disagrees. 

1. October 27, 2010 Vaughn Index 

The October 27, 2010 Vaughn Index sets forth defendants’ 

basis for withholding or redacting certain information as 

exempt. USCIS states in the Substitute Eggleston Declaration 
31

that the documents in the October 27 Vaughn Index were reviewed 

for segregability and that USCIS “released all reasonably 

segregable, nonexempt, non-privileged portions of the subject 

documents.” Sub. Eggleston Decl. ¶ 45.

The Court finds that USCIS’s October 27 Vaughn Index and 

the related paragraphs of the Substitute Eggleston Declaration 

to be inadequate to establish that all non-exempt, reasonably 

segregable portions of the documents disclosed have been 

produced. For example, the entries for the Compliance Review 

Report and the Neufeld Memorandum state only “[t]he balance of 

the document remains eligible for protection under the abovecited FOIA exemption.” Oct. 27, 2010 Vaughn Index, Watkins 

Decl. Ex. 21, at 1. With respect to the H-1B Petition Fraud 

Referral Sheet, defendants indicate only that the “[a]gency 

continues to withhold balance based on above-cited FOIA 

exemption.” Id. at 2. The submissions fail to describe the 

proportion of exempt to non-exempt information and fail to 

establish that any non-exempt information is “inextricably 

intertwined” with exempt information. See Mead Data Cent., 

Inc., 566 F.2d at 260; McGehee v. Dep’t of Justice, 800 F. Supp. 

2d 220, 238 (D.D.C. 2011) (“Defendant’s declarant’s statement 

that every effort was made to provide plaintiff with all 

material in the public domain and with all reasonably segregable 

portions of the releasable material falls far short of the 
32

specificity required to justify non-segregation. Therefore, 

Defendant has not carried its burden of demonstrating that all

segregable material has been disclosed.”) (citing Johnson v. 

Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 

2002) (internal quotation marks omitted)). 

Furthermore, because the BFCA Report and the Compliance 

Review Report Instructions share a common subject matter (fraud 

indicators) with the documents that USCIS has redacted and 

listed in the October 27, 2010 Vaughn Index, the Court finds 

that USCIS is required to specifically explain the difference 

between what it has deemed appropriate for public disclosure and 

what remains withheld. Specifically, defendants must specify 

how the redacted information differs from the BFCA Report and 

the Compliance Review Report Instructions. See Army Times Pub. 

Co. v. Dep’t of Air Force, 998 F.2d 1067, 1071-72 (D.C. Cir. 

1993) (requiring Vaughn submission to be “sufficiently detailed” 

to distinguish between the information being withheld and any 

similar publicly-available information).

2. May 9, 2011 Vaughn Index

The May 9, 2011 Vaughn Index sets forth defendants’ basis 

for withholding information from documents located in searches 

conducted during this litigation. With respect to those 

documents, the Substitute Eggleston Declaration states that 
33

“[a]ll responsive documents were reviewed with an eye toward 

providing the fullest disclosure and, in furtherance of this 

goal, received a line-by-line examination in an effort to 

identify all reasonably segregable, unprivileged, nonexempt 

portions for release to plaintiff.” Sub. Eggleston Decl. ¶ 60.

The Court finds the May 9 Index to also be inadequate. 

First, the index is inadequate because none of the entries and 

the accompanying portions of the Substitute Eggleston 

Declaration specify the relationship between any exempt and nonexempt information in the documents. The Court emphasizes that 

this requirement applies to all information withheld under any 

exemption, and not only the documents withheld under exemption 

7(E). See McGehee, 800 F. Supp. 2d at 238. Furthermore, with 

respect to the documents exempted under 7(E), the Court finds 

that the May 9 Index and accompanying portions of the Substitute 

Eggleston Declaration fail to specifically explain how the 

exempted information differs from the publicly-disclosed 

Compliance Review Report Instructions and the BFCA Report. For 

example, the document referenced on page 2 as “H-1B Primary 

Fraud Indicators for Referral (Rev. 08-28-08, D12)” appears from 

its description to relate to fraud indicators. See May 9, 2011 

Vaughn Index, Watkins Decl., Ex. 20, at 2. The accompanying 

description does not, however, explain how the redacted 

information differs from information that the defendants have 
34

chosen to publicly disclose. As explained above, the Court 

finds that USCIS is required to specifically explain the 

difference between what it has deemed appropriate for public 

disclosure and what remains withheld, in light of the existence 

of the publicly-disclosed BFCA Report and the Compliance Review 

Report Instructions. Specifically, for any documents that 

relate to the subject matter discussed in the BFCA Report and 

the Compliance Review Report Instructions, defendants must 

specify how the information redacted differs from what has been 

officially disclosed. 

D. Resolution

Having found the USCIS’s Vaughn submissions inadequate, the 

Court has several options regarding how to now proceed in the 

case, including whether to inspect the documents in camera, 

requesting further affidavits, or allowing the plaintiff 

discovery. See Elec. Frontier Found., 2011 WL 5966379, at *11 

(citing Spirko v. USPS, 147 F.3d 992, 997 (D.C. Cir. 1998)). 

Because a district court should not undertake in camera review 

of withheld documents as a substitute for requiring an agency’s 

explanation of its claims exemptions in accordance with Vaughn, 

see id., the Court finds that the best approach is to direct 

defendants to submit revised Vaughn submissions. See Army Times 

Pub. Co., 998 F.2d at 1071-72. The Court notes that the USCIS’s 
35

revised Vaughn submissions must be sufficiently detailed such 

that the Court and plaintiff can conduct their own reviews of 

the segregability of the non-exempt information, particularly in 

light of the previously-disclosed information regarding fraud 

indicators in the BFCA Report (Watkins Decl., Ex. 2) and the 

Compliance Review Report Instructions produced by defendants in 

response to plaintiff’s FOIA Requests (Watkins Decl., Ex. 29). 

The Vaughn submissions should contain a segregability analysis 

for each document withheld in part or in full, identifying the 

proportion of exempt and non-exempt information, and 

specifically explaining why the withheld information cannot be 

produced. 

IV. CONCLUSION

For the foregoing reasons, the Court concludes that 

defendants’ Vaughn submissions and accompanying Substitute 

Eggleston Declaration fail to set forth a sufficient basis that 

“any reasonably segregable portion” of the documents defendants 

seek to withhold have been provided to plaintiff. See 5 U.S.C. 

§ 552(b). Accordingly, defendants’ cross-motion for summary 

judgment must be DENIED without prejudice, and plaintiff’s 

motion for summary judgment must be GRANTED insofar as it 

challenges the segregability analysis set forth by defendants. 

Defendants are hereby directed to file revised Vaughn 

submissions that take into account the deficiencies identified 
36

by the Court by no later than April 30, 2012. The parties are 

directed to file a joint recommendation for further proceedings 

by no later than May 31, 2012. An appropriate order accompanies 

this Memorandum Opinion.

It is so ORDERED. 

Signed: Emmet G. Sullivan

United States District Judge

March 30, 2012