19-1157

Spadaro v. United States Customs and Border Protection, et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

August Term, 2019

(Argued: May 4, 2020 Decided: October 20, 2020)

No. 19-1157

_______________

SARO SPADARO,

Plaintiff-Appellant,

— v. —

UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT 

OF STATE, FEDERAL BUREAU OF INVESTIGATION, UNITED STATES CITIZENSHIP AND 

IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF JUSTICE,

Defendants-Appellees.

_______________

Before: LOHIER, BIANCO, and PARK, Circuit Judges.

_______________

Plaintiff-appellant Saro Spadaro appeals from a judgment of the United 

States District Court for the Southern District of New York (Sullivan, J.) entered in 

favor of defendants-appellees United States Customs and Border Protection, the 

United States Department of State, the Federal Bureau of Investigation, United 

States Citizenship and Immigration Services, and the United States Department of 

Justice. Spadaro filed his complaint under the Freedom of Information Act, 5 

U.S.C. § 552, seeking documents related to the revocation of his visa. The district 

court granted defendants-appellees’ motion for summary judgment, upholding
2

their claims of statutory exemptions, and entered judgment on March 27, 2019. 

Because we conclude that the contested documents pertain to the issuance and 

refusal of a visa, we hold that they were properly withheld under FOIA Exemption 

3, and specifically INA § 222(f). We also find Spadaro’s other arguments as to why 

Exemption 3 does not protect the withheld documents from disclosure to be 

unpersuasive. Accordingly, and for the reasons set forth in a separate summary 

order addressing FOIA Exemption 5 filed simultaneously with this Opinion, we 

AFFIRM the judgment of the district court.

_______________

ROBERT S. GROBAN, JR., Berry 

Appleman & Leiden LLP, New York, 

NY (David J. Clark, Matthew S. Aibel, 

Epstein Becker & Green, P.C., New 

York, NY, on the brief), for PlaintiffAppellant.

STEPHEN CHA-KIM, Assistant United 

States Attorney (Benjamin H. 

Torrance, Assistant United States 

Attorney, on the brief), for Audrey 

Strauss, Acting United States 

Attorney for the Southern District of 

New York, New York, NY, for 

Defendants-Appellees.

_______________

JOSEPH F. BIANCO, Circuit Judge:

Plaintiff-appellant Saro Spadaro brought this action under the Freedom of 

Information Act (“FOIA”), 5 U.S.C. § 552, against defendants-appellees United 
3

States Customs and Border Protection (“CBP”), the United States Department of 

State (“DOS”), the Federal Bureau of Investigation (“FBI”), United States 

Citizenship and Immigration Services (“USCIS”), and the United States 

Department of Justice (“DOJ” and, collectively, “the government”), in the United 

States District Court for the Southern District of New York (Sullivan, J.). Spadaro 

sought complete and unredacted records relating to himself generally and relating 

to the government’s decision to prudentially revoke his visa in 2008. In response, 

the government invoked certain statutory exemptions, including FOIA Exemption 

3, which protects from disclosure records that are specifically exempted by statute,

and FOIA Exemption 5, which protects from disclosure attorney-client and 

deliberative communications. The district court granted summary judgment in 

the government’s favor, holding that it properly withheld the documents 

under the exemptions. On appeal, Spadaro principally argues that Exemption 3 

does not apply to the material at issue because the governing statute, § 222(f) of 

the Immigration and Nationality Act of 1952 (“INA”), codified at 8 U.S.C. § 1202(f), 

only protects material that relates to the issuance or refusal of visas, while these 

documents relate to the revocation of his visa. He further contends that Exemption 

5 does not apply because of, inter alia, waiver and misconduct by the government. 
4

In a separate summary order filed simultaneously with this Opinion, we affirm 

the district court’s ruling as to Exemption 5. We conclude here that under 

Exemption 3 – and specifically pursuant to INA § 222(f) – documents that pertain 

to a visa revocation fall within the statute’s coverage and are thus protected from 

disclosure. We also find Spadaro’s other arguments as to why Exemption 3 does 

not protect the withheld documents from disclosure to be unpersuasive. 

Accordingly, we AFFIRM the judgment of the district court.

BACKGROUND

I. Facts

Spadaro, a citizen of Italy who resides on the Dutch Caribbean island of St. 

Maarten, seeks information regarding the DOS’s decision to revoke his B-1/B-2

visa, which has prevented him from traveling to the United States. Prior to the 

revocation, Spadaro frequently traveled to the United States for business and 

leisure. From about 2000 to March 2006, he entered the country using the Visa 

Waiver Program, until he was informed that he would need to secure a visa for 

further visits. Spadaro applied for a visa, and on March 30, 2006, after clearing the 

required security checks, he was issued a combination B-1/B-2 visitor’s visa from 

the DOS through the United States Embassy in Bridgetown, Barbados. Following 
5

issuance, Spadaro used the five-year B-1/B-2 visa to travel to the United States on 

multiple occasions.

On October 22, 2008, Spadaro received notice from the DOS that his visa had 

been “prudentially revoked.” Joint App’x at 617, 668. A “prudential revocation”

is a mechanism by which the DOS can revoke visas “if an ineligibility or lack of 

entitlement is suspected, when [a noncitizen] would not meet requirements for 

admission, or in other situations where warranted.” Foreign Affairs Manual 

§ 403.11. The DOS based its decision on INA § 212(a)(3)(A)(ii), 8 U.S.C.

§ 1182(a)(3)(A)(ii), which permits the DOS to bar the admission of a foreign 

national who the DOS “knows[] or has reasonable ground to believe” will engage 

in unlawful activity in the United States. Appellant Br. at 2 (quoting 8 U.S.C.

§ 1182(a)(3)(A)(ii)). Spadaro appealed this decision with the DOS, contending that 

the revocation was improper because he had no criminal record. On January 26, 

2010, the DOS affirmed its decision to revoke the visa under INA § 212(a)(3)(A)(ii). 

In February 2014, October 2014, and February 2017, Spadaro re-submitted visa 

applications, which the DOS subsequently denied.

Spadaro alleges that at a meeting on or around January 29, 2013, two FBI 

agents admitted to him that there was no evidence to support the revocation. 
6

According to Spadaro, the FBI agents revealed that, in the early 2000s, the 

government had investigated whether Spadaro’s father, Rosario Spadaro, had 

committed insurance fraud or money laundering in connection with a damages 

claim he made after Hurricane Lenny in 1999. Despite the investigation, labeled 

“Operation Blackbeard, Sicilian Mafia,” Joint App’x at 679, 690, no charges were 

filed in the United States against Spadaro or his father, and the case was closed.

Spadaro asserts that, during the meeting, the FBI agents informed him that 

due to confusion distinguishing him from his father, he was placed on a “watch 

list” as a result of the FBI investigation. Joint App’x at 621. The FBI neither 

confirms nor denies that Spadaro’s name appears on any watch list. The FBI 

agents purportedly stated that the problem with his visa could be resolved, and 

he could get his visa back if he either gave them information on criminal activities 

or paid a $3 million “civil forfeiture” payment for crimes allegedly committed by 

his father. Joint App’x at 622. He claims that, because he rejected these offers, the 

government has spread false information to foreign authorities, which has hurt his 

business endeavors.

In February 2014, Spadaro met with two Drug Enforcement Administration 

(“DEA”) agents. According to Spadaro, they similarly told him that they could 
7

assist with his visa if he gave them information on criminal activity. Spadaro 

asserted that he had no information to give, and the DEA subsequently informed 

him that it could not assist with his visa.

Since his meetings with the FBI and DEA, Spadaro has experienced 

application and travel delays in foreign countries. Spadaro believes that these 

disruptions have been caused by the spread of incorrect information about him by 

U.S. officials and represent an attempt to force him to cooperate with their 

investigations. For example, on March 18 and 20, 2014, while traveling to and from 

Panama, Spadaro was stopped and questioned by Panamanian immigration 

officials before being allowed to enter and exit the country.

Spadaro later encountered issues in Anguilla when trying to obtain a 

landholding license. Spadaro claims that the only reason that the Anguillan 

authorities have not approved the license is a letter dated October 21, 2014, in 

which Jeffrey Stanley, Legal Attaché to the U.S. Embassy in the Bahamas, repeated 

several of the allegations that the FBI and DEA made against Spadaro to an 

Inspector in the Royal Anguilla Police Force. In addition, in 2016, while traveling 

to Montreal, Spadaro was stopped and questioned about his business dealings 

before being told that he was on a “no go list.” Joint App’x at 604. He contends
8

that these instances demonstrate that the government is trying to spread 

misinformation about him in order to “extort his cooperation.” Appellant Br. at 

12.

Seeking information that the government had about himself generally and 

the revocation of his visa specifically, Spadaro submitted FOIA requests to the 

DOS, USCIS, CBP, the DOJ, and the FBI. In response, Spadaro explains that the 

government agencies identified 3,200 pages of documents responsive to Spadaro’s 

requests, withheld 2,229 pages, and produced 971 of those pages, 774 of which 

Spadaro describes as “heavily redacted.” Appellant Br. at 12. Specifically, the CBP 

identified 436 pages of responsive documents, all of which were released with 

redactions under FOIA Exemptions 6, 7(C), and 7(E). Of the 107 responsive 

documents identified by the DOS, 39 were released in full, five were withheld in 

part, and 63 were withheld in full under FOIA Exemptions 3, 5, and 7(E). USCIS 

identified 34 pages responsive to Spadaro’s request, of which 26 pages were 

released in full, six were withheld in part, and two were withheld in full under 

FOIA Exemptions 7(C) and 7(E). Of the 2,798 pages reviewed by the FBI, 462 were 

released in full or in part after withholdings were made under FOIA Exemptions 

1, 3, 5, 6, 7(C), 7(D), and 7(E).
9

II. Procedural History

Spadaro filed this lawsuit on January 4, 2016, and the parties each moved 

for summary judgment in 2017. At oral argument on March 12, 2018, the district 

court ruled from the bench, partially granting the government’s motion for 

summary judgment, and fully denying Spadaro’s cross-motion, as to Exemptions 

1, 3, 5, 6, 7(C), and 7(D). The court also determined that the government had not 

met its burden in claiming FOIA Exemption 7(E). The next day, March 13, the 

district court issued an order setting forth its rulings from the oral argument and 

directing further briefing on the remaining issues.

On March 26, 2018, the parties submitted a joint letter in which Spadaro

requested that the district court reconsider its rulings on Exemptions 3 and 5. In 

the letter, the government also agreed to submit revised affidavits and a revised 

Vaughn index1 as to Exemption 7(E). On May 17, 2018, the district court issued an 

order rejecting Spadaro’s request that it reconsider its decision as to FOIA 

Exemption 3, ordering the parties to file renewed cross-motions for summary 

1 A Vaughn index, derived from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), “number[s] 

and identif[ies] by title and description documents that are being withheld and specif[ies] 

the FOIA exemptions asserted.” N.Y. Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 105 

(2d Cir.), opinion amended on denial of reh’g, 758 F.3d 436 (2d Cir.), supplemented, 762 F.3d 

233 (2d Cir. 2014).
10

judgment on Exemption 5, and directing the parties to address the issue of 

segregability.2

The parties renewed their cross-motions for summary judgment on 

Exemptions 5 and 7(E), and on March 25, 2019, the district court granted the 

government’s motion and denied Spadaro’s motion. The district court entered

judgment on March 27, 2019.

Spadaro timely filed a notice of appeal on April 25, 2019. Spadaro seeks 

review of multiple decisions by the district court: (1) the March 12, 2018 rulings 

from the oral argument on the motions for summary judgment; (2) the March 13, 

2018 order memorializing the rulings from oral argument; (3) the May 17, 2018 

order; (4) the March 25, 2019 order; and (5) the March 27, 2019 entry of judgment. 

Spadaro first argues that the district court erred by permitting the DOS to withhold 

and redact documents under FOIA Exemption 3, which he claims relates only to 

the disclosure of documents pertaining to the issuance of a visa or refusal of a visa

2 FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided 

to any person requesting such record after deletion of the portions which are exempt 

under this subsection.” 5 U.S.C. § 552(b). “Before approving the application of a FOIA

exemption, the district court must make specific findings of segregability regarding the 

documents to be withheld.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 

2007). Spadaro does not challenge the district court’s segregability finding.
11

– not the revocation of a visa. Second, he asserts that the government improperly 

withheld those documents under FOIA Exemption 7(E), which protects law 

enforcement techniques or procedures. Finally, he claims that the district court 

erred by granting summary judgment in the government’s favor after finding that 

the government properly relied on FOIA Exemption 5 to withhold and redact 

documents, asserting that the government waived any privilege to matters 

discussed in a public letter. Spadaro does not appeal the district court’s decision 

denying his claims under FOIA Exemptions 1, 6, 7(C), and 7(D).

DISCUSSION

Spadaro appeals the district court’s order granting summary judgment to 

the government, which allowed the DOS to withhold and redact certain 

documents based upon enumerated exemptions to FOIA. We focus here on 

Spadaro’s arguments regarding Exemption 3 and address in a separate summary 

order his arguments regarding Exemption 5. At issue are documents withheld in 

full or in part by the DOS, as set forth in its Vaughn indices.3 According to the 

Vaughn indices, the material withheld pursuant to Exemption 3, and specifically 

INA § 222(f), “pertains directly to the issuance or refusal of a visa to enter the 

3 We use the term “withheld documents” in this Opinion to refer to documents that the 

government withheld in full or in part because of redactions.
12

United States.” Joint App’x at 283; see also Joint App’x at 284–94, 593–94.

Spadaro claims that the district court erred by permitting the DOS to rely on 

Exemption 3 because “(a) documents concerning [his] visa revocation do not relate 

to the issuance or refusal of visas, and therefore are not protected from disclosure 

by INA § 222(f) (8 U.S.C. § 1202(f)),” and (b) even if the confidentiality requirement 

of INA § 222(f) applies to the withheld documents, the documents should be 

released in the interest of the ends of justice under that provision. Appellant Br. 

at 14, 30–31.

I. Standard of Review

This Court reviews a district court’s grant of summary judgment in FOIA 

litigation de novo. Wilner v. NSA, 592 F.3d 60, 69 (2d Cir. 2009). “The agency 

asserting the exemption bears the burden of proof, and all doubts as to the 

applicability of the exemption must be resolved in favor of disclosure.” Id.

Although FOIA “was enacted to promote honest and open government[,] 

. . . access to governmental information must be ‘orderly and not so unconstrained 

as to disrupt the government’s daily business.’” Grand Cent. P’ship, Inc. v. Cuomo, 

166 F.3d 473, 478 (2d Cir. 1999) (quoting Ethyl Corp. v. EPA, 25 F.3d 1241, 1245 (4th 

Cir. 1994)). To balance these concerns, the statute permits an agency to withhold 
13

certain information pursuant to nine exemptions. 5 U.S.C. § 552(b); see also Halpern 

v. FBI, 181 F.3d 279, 287 (2d Cir. 1999).

“An agency that has withheld responsive documents pursuant to a FOIA 

exemption can carry its burden to prove the applicability of the claimed exemption 

by affidavit.” Wilner, 592 F.3d at 73; see also Carney v. U.S. Dep’t of Justice, 19 F.3d 

807, 812 (2d Cir. 1994). “Summary judgment is warranted . . . when the affidavits 

describe the justifications for nondisclosure with reasonably specific detail, 

demonstrate that the information withheld logically falls within the claimed 

exemption, and are not controverted by either contrary evidence in the record nor 

by evidence of agency bad faith.” N.Y. Times v. CIA, 965 F.3d 109, 114 (2d Cir. 

2020) (quoting Wilner, 592 F.3d at 73). Affidavits submitted by the government 

“are accorded a presumption of good faith.” Carney, 19 F.3d at 812 (quotation 

marks omitted). This presumption “cannot be rebutted by purely speculative 

claims about the existence and discoverability of other documents.” Grand Cent. 

P’ship, Inc., 166 F.3d at 489 (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 

(D.C. Cir. 1991)).

II. FOIA Exemption 3

Under FOIA Exemption 3, an agency may withhold material that is 
14

“specifically exempted from disclosure by statute . . . if that statute . . . (i) requires 

that the matters be withheld from the public in such a manner as to leave no 

discretion on the issue; or (ii) establishes particular criteria for withholding or 

refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). To claim 

this Exemption, the government must demonstrate that: “(1) the statute invoked 

qualifies as an [E]xemption 3 withholding statute, and (2) the materials withheld 

fall within that statute’s scope.” A. Michael’s Piano, Inc. v. FTC, 18 F.3d 138, 143 (2d 

Cir. 1994). Here, the government invokes § 222(f) of the INA as its statutory basis 

for withholding the documents at issue under Exemption 3.

Section 222(f) of the INA is entitled “Confidential nature of records,” and 

provides that “[t]he records of the Department of State and of diplomatic and 

consular offices of the United States pertaining to the issuance or refusal of visas 

or permits to enter the United States shall be considered confidential and shall be 

used only for the formulation, amendment, administration, or enforcement of the 

immigration, nationality, and other laws of the United States,” with two narrow 

exceptions for disclosures to courts or foreign governments. 8 U.S.C. § 1202(f).

As to the first requirement for application of Exemption 3, we conclude that 

INA § 222(f) is a qualifying statute because it clearly “refers to particular types of 
15

matters to be withheld,” 5 U.S.C. § 552(b)(3)(A)(ii), that is, records “pertaining to 

the issuance or refusal of visas or permits to enter the United States,” INA § 222(f).4 

Accord Medina-Hincapie v. Dep’t of State, 700 F.2d 737, 741 (D.C. Cir. 1983) (“Every 

court which has considered the issue has concluded that section 222(f) qualifies as 

an Exemption 3 statute.”); see also Wiener v. FBI, 943 F.2d 972, 982 (9th Cir. 1991); 

De Laurentiis v. Haig, 686 F.2d 192, 193 (3d Cir. 1982).

Although Spadaro concedes that the government has satisfied the first 

requirement under Exemption 3, he disputes whether the government has also 

made the requisite showing that the records at issue fall within INA § 222(f)’s 

scope. As a threshold matter, he argues that the government cannot invoke INA 

§ 222(f) for withheld documents that were reviewed by the DOS in connection 

with his visa applications because they were not generated in the course of his 

applications. Moreover, he asserts that, for those documents that specifically 

reference visa revocation, INA § 222(f) does not apply because revocation 

documents do not pertain to “the issuance or refusal of visas.” Finally, he contends 

that “this Court should direct the DOS to release the [withheld] documents in the 

4 The government also argues that it is a qualifying statute under 5 U.S.C. § 552(b)(3)(A)(i) 

because, although it allows for disclosure to courts or foreign governments under limited 

circumstances, it confers no such discretion upon the DOS to disclose these confidential 

records to the public. However, we need not address this alternative argument.
16

interests of justice in this case even if INA § 222(f) otherwise bars their release.” 

Appellant Br. at 31. We address each argument in turn.

1. Documents Reviewed in Connection with the Visa Applications

Spadaro applied for a visa on four occasions – in March 2006, February 2014, 

October 2014, and February 2017. As relevant to this appeal, Eric F. Stein of the 

DOS submitted two declarations: one regarding documents from the DOS, seeJoint

App’x at 269–82, and one regarding documents referred to the DOS by the FBI, see 

Joint App’x at 583–92. As to the latter declaration, Stein explains that the FBI sent 

eight documents to the DOS for consultation, and information was ultimately 

withheld in five of them. In these declarations, Stein sets forth his procedure for 

processing Spadaro’s FOIA requests and withholding certain information 

pursuant to FOIA exemptions. In addition, each declaration from Stein is 

accompanied by a Vaughn index. Based on the indices, the government invoked 

Exemption 3 and INA § 222(f) to withhold approximately two dozen records 

(consisting of 188 pages) in full or in part. It did so, according to its Vaughn index, 

because “[t]he withheld information pertains directly to the issuance or refusal of 

a visa to enter the United States.” E.g., Joint App’x at 283. Specifically, the 

government asserts that the withheld records were all reviewed in connection with
17

one or more of Spadaro’s visa applications, and are therefore protected by INA 

§ 222(f).

Spadaro claims that the dates of the withheld documents do not correspond 

to the dates of his applications for visas, and thus cannot be related to such 

applications. Moreover, he highlights that because some of the documents do not 

have dates, such documents cannot pertain to the issuance of a visa. Below, the 

district court found that “[t]he dates attributed to the documents . . . do not 

purport to indicate when the documents were reviewed in connection with a visa 

application; they merely identify the dates on which the document[s] were 

created.” Special App’x at 22. Thus, the district court concluded, “there is nothing 

about the dates . . . that undermines the contention that those documents were 

considered during the adjudication of [Spadaro’s] later-filed visa application[s].” 

Special App’x at 22.

To the extent that Spadaro asserts that a document must be created in 

connection with the visa application to pertain to the application under INA 

§ 222(f), we find that argument unpersuasive. Although we agree with courts that 

have cautioned that INA § 222(f) cannot be used “to withhold information that 

was not gathered, used, nor is being used to determine an actual past or pending 
18

visa application,” Darnbrough v. U.S. Dep’t of State, 924 F. Supp. 2d 213, 218 (D.D.C. 

2013) (citing Immigr. Just. Clinic of Benjamin N. Cardozo Sch. of Law v. U.S. Dep’t of 

State, No. 12 Civ. 1874 (GBD), 2012 WL 5177410, at *2 (S.D.N.Y. Oct. 18, 2012)), that

is not the situation here. The affidavits and Vaughn indices provide that the 

documents were reviewed in connection with a visa application and ultimate 

refusal of a visa. The confidentiality of documents reviewed in connection with 

the visa application (and potentially also relied upon in the adjudication of that 

application) is necessary to protect the thought-process of the decisionmakers, and 

such documents clearly fall within the ambit of INA § 222(f), which refers broadly 

to protecting documents “pertaining to the issuance or refusal of visas,” rather 

than only documents submitted by the visa applicant. See Medina-Hincapie, 700 

F.2d at 744. The government’s affidavits addressing this issue are “accorded a 

presumption of good faith,” Wilner, 592 F.3d at 69 (quotation marks omitted), and 

Spadaro has not adequately rebutted the claim that the records were reviewed as 

part of his visa application processes.

Thus, this case is unlike Darnbrough, in which the DOS conceded that the 

document at issue was not related to any process to obtain a visa or permit, but 

rather was simply contained in a database. 924 F. Supp. 2d at 218–19; see also 
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Immigr. Just. Clinic of Benjamin N. Cardozo Sch. of Law, 2012 WL 5177410, at *1 (INA 

§ 222(f) did not permit withholding of document when it was “undisputed that 

there has never been any actual visa application”). In short, because there were 

visa applications submitted by Spadaro, and the government affirms, without 

dispute, that the withheld documents were reviewed for one or more of those 

applications, see Joint App’x at 283–94, we conclude that the district court correctly 

determined that these documents fall within the scope of INA § 222(f) and are 

protected from disclosure under Exemption 3.

2. Visa Revocation Records

Spadaro also challenges the district court’s ruling that Exemption 3 applies 

to two documents referenced in the DOS’s Vaughn index that are entitled “Visa 

Revocation Service” and “Revocation Case.”5 Joint App’x at 294–95. Spadaro 

asserts that, under the statutory framework, revocation documents are distinct 

from documents that relate to the issuance or refusal of visas, and thus are not 

shielded from disclosure. More specifically, his argument requires us to consider 

5 As an initial matter, Spadaro argues the fact that the DOS identified only two documents 

about his prudential revocation “seems impossible.” Appellant Br. at 20. Spadaro’s 

unfounded speculation about the number of documents available is not enough to 

overcome the presumption of good faith afforded the affidavits. Thus, we reject any such 

challenge to the sufficiency of the agency’s declarations regarding the documents that it 

found. See Grand Cent. P’ship, Inc., 166 F.3d at 489.
20

whether documents that relate solely to the revocation of a visa “pertain[] to the 

issuance or refusal of visas or permits to enter the United States,” and thus fall 

within the ambit of INA § 222(f). We hold today, as a matter of first impression in 

this Circuit, that they do.

The government argues that “the term ‘issuance’ of visas encapsulates later 

actions, such as revocation, that inherently implicate (by revisiting and nullifying) 

the underlying decision to issue a visa in the first place.” Appellees Br. at 18. The 

district court below agreed. In doing so, it adopted the reasoning of Soto v. United 

States Department of State, in which a federal district court in the District of 

Columbia found that “[i]t is not difficult to see how records that document the 

revocation of a visa—or that were relied upon in the course of revoking a visa—

could ‘pertain[] to the issuance or refusal of [a] visa[].’” No. CV 14-604, 2016 WL 

3390667, at *3 (D.D.C. June 17, 2016) (quoting 8 U.S.C. § 1202(f)). In reaching this 

decision, the district court in Soto recognized that “[a]lthough the issuance of a visa 

is undoubtedly a ‘distinct’ act from the revocation of that same visa, the relevant 

question is not one of equivalence but of pertinence.” Id. at *4 (citation omitted). 

The district court also examined the structure of the INA, finding relevant the fact 

that 8 U.S.C. § 1201(i), which gives the DOS the power to revoke visas, is found 
21

within a section entitled “Issuance of Visas.” Id. It therefore concluded that 

documents pertaining to visa revocation fell within the ambit of INA § 222(f). Id.

Spadaro, instead, relies on a district court in this Circuit, which held that

material relating to visa revocations is not covered by INA § 222(f). In El Badrawi 

v. Department of Homeland Security, the district court, relying on the language of the 

statute as well as the canon of expressio unius, reasoned that “while both ‘issuance’ 

and ‘refusal’ of visas are explicitly mentioned, ‘revocation’ is not.” 583 F. Supp. 

2d 285, 311 (D. Conn. 2008). Thus, the district court held that “records pertaining 

to visa revocation are not protected under the INA.” Id. The court also examined 

the legislative history of the statute, which it concluded provided further support 

for its determination that Exemption 3 did not cover visa revocation records. Id.

at 312; see also Mantilla v. U.S. Dep’t of State, No. 12-21109-CIV, 2012 WL 4372239, 

at *4 (S.D. Fla. Sept. 24, 2012) (same); Guerra v. United States, No. C09-1027RSM, 

2010 WL 5211613, at *2 (W.D. Wash. Dec. 15, 2010) (declining to “broaden the reach 

of this statutory language” by applying the statute to requests for hardship 

waivers).

Although exemptions under FOIA “must be narrowly construed,” Dep’t of 

Air Force v. Rose, 425 U.S. 352, 361 (1976), we agree with the analysis in Soto and 
22

conclude that the plain language of INA § 222(f) encompasses visa revocations.

When interpreting a statute, we begin with the plain language of the statute, 

“giving the statutory terms their ordinary or natural meaning.” United States v. 

Lockhart, 749 F.3d 148, 152 (2d Cir. 2014) (quotation marks omitted). When that 

meaning is not clear, we make use of “a variety of interpretive tools, including 

canons, statutory structure, and legislative history.” Id.; see also United States v.

Dauray, 215 F.3d 257, 264 (2d Cir. 2000) (“When the plain language and canons of 

statutory interpretation fail to resolve statutory ambiguity, we will resort to 

legislative history.”). However, “[w]hen the language of a statute is unambiguous, 

‘judicial inquiry is complete.’” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 290 

(2d Cir. 2002) (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992)); see 

also Lee v. Bankers Tr. Co., 166 F.3d 540, 544 (2d Cir. 1999) (“Legislative history and 

other tools of interpretation may be relied upon only if the terms of the statute are 

ambiguous.”).

In this case, INA § 222(f), as a qualifying statute under Exemption 3, keeps

matters “pertaining to the issuance or refusal of visas or permits to enter the 

United States” confidential. Although the statutory language refers only to 

issuances or refusals on its face, the use of the word “pertaining” makes clear that 
23

the reach of the statute is not so limited. “Pertain” is defined as “[t]o relate directly 

to; to concern or have to do with.” Pertain, Black’s Law Dictionary (11th ed. 2019); 

see also Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992) (explaining that 

the ordinary meaning of the phrase “relating to,” in the Federal Aviation Act, “is 

a broad one—‘to stand in some relation; to have bearing or concern; to pertain; 

refer; to bring into association with or connection with’” (quoting Black’s Law

Dictionary (5th ed. 1979))). Thus, we conclude that the use of the broad phrase 

“pertaining to” plainly gives the statute a wider reach than mere issuances and 

refusals. See, e.g., Airaj v. United States, No. CV 15-983, 2016 WL 1698260, at *8 

(D.D.C. Apr. 27, 2016) (“The plain language of the statute, which encompasses 

records ‘pertaining’ to the issuance or refusal of visas, discourages such a strict 

interpretation of Section 222(f).”), aff’d sub nom. Airaj v. U.S. Dep’t of State, No. 16-

5193, 2017 WL 2347794 (D.C. Cir. Mar. 30, 2017).

Applying that broad phrase to the circumstances here, it is clear that the 

revocation of a visa pertains to the issuance of a visa because they are so closely 

related – namely, a revocation constitutes a nullification of that issuance. See Soto,

2016 WL 3390667, at *3–4; see also Vizcarra Calderon v. U.S. Dep’t of Homeland Sec., 

No. 18-CV-764, 2020 WL 805212, at *3 (D.D.C. Feb. 18, 2020) (relying on Soto to find 
24

that a document similarly entitled “Visa Revocation Services” was properly 

withheld under Exemption 3). Indeed, a visa can never be revoked without first 

being issued. As the court in Soto aptly described it, “the issuance and revocation 

of visas represent two sides of the same coin.” See Soto, 2016 WL 3390667, at *4. 

Indeed, by way of analogy, it is clear that a refund receipt for a product would be 

a document “pertaining to” the purchase of that product. Because we agree that 

the question here is one of pertinence, not equivalence, id., we hold that the plain 

language of INA § 222(f) encompasses revocation documents.

Like the court in Soto, we are unpersuaded by the analysis in El Badrawi ̧ 

which focused on the terms “issuance” and “refusal” and relied upon the canon 

of expressio unius – namely, the explicit mention of one thing is the exclusion of 

another left unmentioned – to determine that INA § 222(f) did not reach 

revocations. See 583 F. Supp. 2d at 311. As a threshold matter, we rely upon canons 

of construction only if the language of the statute is ambiguous, which is not the 

situation here. See Power Auth. v. M/V Ellen S. Bouchard, 968 F.3d 165, 170 (2d Cir. 

2020) (“Only if the text is ambiguous do we ‘turn to canons of statutory 

construction for assistance in interpreting the statute.’” (quoting Greathouse v. JHS 

Sec. Inc., 784 F.3d 105, 111 (2d Cir. 2015))). In any event, even if there were 
25

ambiguity here, the statutory structure also supports our conclusion. See Lexecon

Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 36 (1998) (“[A] statute is 

to be considered in all its parts when construing any one of them.”); see also Bloom 

v. Azar, --- F.3d ---, 2020 WL 5648519, at *3 & n.1 (2d Cir. 2020) (because the expressio 

unius canon is particularly dependent on context, “[t]he Supreme Court has often 

declined to rely on the . . . canon when it is insufficiently sensitive to context”). As 

explained by the court in Soto, although INA § 222(f) appears in a section of the 

INA entitled “Application for visas,” 8 U.S.C. § 1202, the subsection of the INA 

that provides for the revocation of visas, 8 U.S.C. § 1201(i), appears in a section of 

the Act entitled “Issuance of visas,” see 8 U.S.C. § 1201. Thus, even assuming 

arguendo that the language of INA § 222(f) was ambiguous, its application to 

revocations is certainly buttressed by the fact that Congress used the title 

“Issuance of visas” to cover not just the initial issuance of the visa, but also 

intertwined acts such as visa renewals, non-issuances, and revocations. 8 U.S.C. 

§ 1201(c), (g), (i).

We similarly disagree with Spadaro’s reliance, as well as that of the district 

court in El Badrawi, on later amendments to the INA to glean congressional intent 

on this issue. Examining a later amendment to the INA, the court in El Badrawi 
26

reasoned that Congress:

continued to treat visa revocations separately from issuances and 

refusals. See Pub. L. 108–458, 118 Stat. 3638. For example, § 5304 of 

that Act, entitled “Revocation of Visas and Other Travel 

Documentation,” can be contrasted with § 5302, “Visa Application 

Requirements.” Id. The fact that the two procedures are addressed 

in distinct sections of the legislation evidences an intent on the part of 

the lawmakers that visa revocation be treated as distinct from visa 

application (i.e., issuance or refusal of visas). Beyond mere titles, 

however, the legislation made discrete distinctions substantively. See

Pub. L. 108–458 § 5304, 118 Stat. 3638, 3736 (changing judicial review 

for visa revocation, but not for issuance or denial).

583 F. Supp. 2d at 311–12. We must emphasize the Supreme Court’s “oft-repeated 

warning that the views of a subsequent Congress form a hazardous basis for 

inferring the intent of an earlier one.” Consumer Prod. Safety Comm’n v. GTE 

Sylvania, Inc., 447 U.S. 102, 117 (1980) (quotation marks omitted). That hazard is 

magnified where, as here, the subsequent amendments did not relate to the 

particular provision at issue and were done for an entirely different purpose. 

Rather, these amendments were enacted in 2004 as part of the Intelligence Reform 

and Terrorism Prevention Act, which sought to “reform the intelligence 

community and the intelligence and intelligence-related activities of the United 

States [g]overnment.” Pub. L. No. 108-458, 118 Stat. 3638 (Dec. 17, 2004). As the 

government correctly notes, “the fact that Congress treated revocation and 
27

issuance of visas differently for the purposes of reforming the existing revocation 

and issuance processes says nothing about Congress’s earlier decision to treat 

revocations within the umbrella of visa issuance in § 1201, much less about the 

congressional decision to make records regarding visas confidential in § 1202.” 

Appellees Br. at 17. In short, we conclude that these subsequent amendments have 

no weight in discerning congressional intent on the issue before us.

Finally, in a last-ditch effort, Spadaro attempts to distinguish the way in 

which his visa was revoked by the DOS and the way in which the revocations 

occurred in Soto and similar cases that found in the government’s favor. He asserts 

that, although the plaintiffs in those cases had their visas revoked abroad under 

§ 222(c), his visa was revoked under § 221(i) in Washington, D.C. He thus suggests 

that, because the revocation of his visa was a prudential revocation by the DOS 

rather than a consular revocation that took place overseas, the need to protect the 

confidentiality of the thought-process for overseas consular revocations does not 

apply with equal force to his domestic revocation. Spadaro, however, points to no 

case that has relied on such geographic limitations, and we find no reason to read 
28

such a limitation into the statute.6

Our broader interpretation of the statute comports with the view that “[t]he 

scope of section 222(f) is not limited to information supplied by the visa 

applicant[;] it includes information revealing the thought-processes of those who 

rule on the application.” Medina-Hincapie, 700 F.2d at 744. Spadaro fails to offer

any convincing reason why Congress would not seek to protect the thoughtprocesses of those ruling on revocations to the same extent as those ruling on

issuances or refusals of visas, or would be more concerned with protecting the 

thought-processes on such matters of overseas consular officials as compared to 

DOS officials in the United States. Therefore, even if we were to determine that 

the statute was ambiguous, the purpose of INA § 222(f) would dictate that the 

confidentiality of revocation documents be included within its scope. See 

Connecticut ex rel. Blumenthal v. U.S. Dep’t of the Interior, 228 F.3d 82, 89 (2d Cir.

2000) (holding that if a statute is ambiguous, we must “construct an interpretation 

that comports with [the statute’s] primary purpose and does not lead to 

anomalous or unreasonable results”).

6 We also highlight that the plain text of INA § 222(f) refers to “[t]he records of the 

Department of State and of diplomatic and consular offices of the United States,” 8 U.S.C. 

§ 1202(f) (emphasis added), further undercutting Spadaro’s attempt to insert a 

geographic limitation.
29

Accordingly, we conclude that the DOS officials properly invoked 

Exemption 3, and specifically INA § 222(f), to withhold the revocation documents.

3. Releasing the Records in the Interest of the Ends of Justice

Spadaro alternatively argues that even if INA § 222(f) applies pursuant to 

Exemption 3, the documents should be released in the interest of the ends of 

justice. Under INA § 222(f)(1), the Secretary of State may release certified copies 

of such records if a court “certifies that the information contained in such records 

is needed by the court in the interest of the ends of justice in a case pending before 

the court.” Spadaro contends that “[g]iven the Government’s undisputed misuse 

of this material to Spadaro’s detriment, and Spadaro’s inability to defend himself 

from these Government actions, this Court should direct the DOS to release the 

documents in the interests of justice in this case even if INA § 222(f) otherwise bars 

their release.” Appellant Br. at 31.

Spadaro has not adequately demonstrated that this Court or any other court 

requires the particular material, and he cannot rely on this subsection of the INA 

“to request documents from the Secretary merely for the purpose of turning those 

documents over to an unsuccessful FOIA applicant.” Soto v. U.S. Dep’t of State, 118 

F. Supp. 3d 355, 371 (D.D.C. 2015). In other words, the function of this narrow 
30

exception is to allow the DOS to disclose such documents in pending court 

proceedings, separate and apart from a FOIA action, where the court certifies its 

need for such documents. Therefore, the limited circumstances in which a court 

has relied on this subsection include a request for documents pertaining to a 

criminal matter, United States v. O’Keefe, No. 06-CR-0249, 2007 WL 1239204, at *2

n.1 (D.D.C. Apr. 27, 2007) (“There can be no question that in a criminal case 

regarding the handling of requests within a consulate, consular records are 

‘needed by the Court in the interest of the ends of justice’ within the meaning of 

this statute.”), and a request from the parties in order to allow the district court to 

ascertain the basis of the defendants’ determination that the plaintiff was 

inadmissible, Tran v. Rice, No. 06-CV-02697-H, 2007 WL 9776703, at *1 (S.D. Cal. 

May 1, 2007).

In short, Spadaro has failed to meet his burden of demonstrating that the 

records are needed by a court “in the interest of the ends of justice,” and the 

discretionary release of records under § 1202(f)(1) provides no basis for disclosure 

in this FOIA action.

CONCLUSION

In sum, we conclude that the documents at issue are protected from 
31

disclosure under Exemption 3 because they pertain to the issuance or refusal of 

visas to enter into the United States.7 Accordingly, for the foregoing reasons and 

the reasons stated in our separate summary order filed today, the judgment of the 

district court is AFFIRMED.

7 Because the Court concludes that the documents were all properly withheld under 

Exemption 3, the Court need not reach Spadaro’s argument regarding Exemption 7(E).