UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

) 

ANTENEH ABTEW, ) 

) 

Plaintiff, ) 

) 

v. ) Civil Action No. 13-1566 (ABJ) 

) 

UNITED STATES DEPARTMENT ) 

OF HOMELAND SECURITY, ) 

) 

Defendant. ) 

____________________________________) 

MEMORANDUM OPINION 

In this case, plaintiff Anteneh Abtew asks the Court to order defendant Department of 

Homeland Security to provide the Assessment to Refer (“Assessment”) prepared by the asylum 

officer who conducted the initial review of plaintiff’s asylum application as well as the asylum 

officer’s notes pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012), 

(Counts I and II). Compl., Prayer for Relief, ¶¶ a, b, d, e [Dkt. # 1]. The complaint also seeks a 

declaratory judgment that defendant’s withholding of the Assessment and notes violated 

plaintiff’s rights under 8 U.S.C. § 1229a(b) (2012) (Count III). Id. ¶¶ c, f. 

During the pendency of the case, defendant released the asylum officer’s notes to the 

plaintiff, rendering Count I moot. The parties then filed cross-motions for summary judgment on 

the remaining two counts. Pl.’s Mot. for Summ. J. (“Pl.’s Mot.”) [Dkt. # 17]; Def.’s Mem. in 

Supp. of its Mot. for Summ. J. & Opp. to Pl.’s Mot. (“Def.’s Mot.”) [Dkt. # 23]. After a review 

of the Assessment in camera, the Court finds that the Assessment is protected by the deliberative 

process privilege and that the privilege has not been waived. It also finds, however, that the 

initial factual recitation contained in the first six paragraphs is not deliberative and is reasonably 
2 

segregable from the deliberative portion of the document. As a result, the Court will grant 

defendant’s motion for summary judgment in part and deny it in part, and it will grant plaintiff’s 

motion for summary judgment in part and denying it in part with respect to Count II. The Court 

will also dismiss Count III because it is not ripe. 

BACKGROUND 

I. LEGAL FRAMEWORK 

A. The asylum application process. 

Individuals seeking asylum in the United States may file an application for asylum with 

the United States Citizenship and Immigration Services (“USCIS”), which is a component of the 

Department of Homeland Security (“DHS”). Def.’s Statement of Material Facts as to which 

there is no Genuine Dispute (“Def.’s SOF”) ¶ 4 [Dkt. # 23]. USCIS then reviews the application 

and decides whether it should be granted or denied. If the application is granted, the individual 

is permitted to stay in the United States. If USCIS determines that it cannot grant the 

application, it will notify the individual of that decision, and what happens next depends on 

whether the applicant was legally (“in-status”) or illegally (“out-of-status”) in the United States 

at the time the asylum application was filed. Def.’s SOF ¶¶ 2, 6. 

Asylum applicants who are in-status are sent what is called a Notice of Intent to Deny 

(“NOID”). Id. ¶ 16. The NOID explains that USCIS cannot approve the asylum application, and 

it notifies the applicant that he or she has sixteen days to respond to the NOID by submitting 

additional information and supporting documents. Id. ¶¶ 17–18; Pl.’s Statement of Material 

Facts not in Dispute (“Pl.’s SOF”) ¶ 15 [Dkt. # 18]. If, after the submission of additional 

material, USCIS continues to believe the asylum application should be denied, the asylum officer 

(“AO”) assigned to the case (subject to approval by the Supervisory AO) will advise the alien 
3 

that the application has been denied. Def.’s SOF ¶ 19. An in-status alien whose application has 

been denied does not have any right to further review of the denial. Id. ¶ 20. 

If the applicant is out-of-status, on the other hand, the AO prepares what is called an 

“Assessment to Refer” (“Assessment”) instead of a NOID. The Assessment includes the AO’s 

recommendation that the application be denied and that the out-of-status applicant be referred to 

the immigration court for removal proceedings. Def.’s SOF ¶ 8; Pl.’s SOF ¶¶ 2–5. The 

Assessment also includes the reasoning underlying the AO’s recommendation. Pl.’s SOF ¶ 8.

After the AO drafts the Assessment, the Supervisory AO reviews and initials the 

document. Def.’s SOF ¶ 8; Pl.’s SOF ¶ 2. The Assessment is then placed in the asylum 

applicant’s file, and the file is transferred to the DHS lawyer who will represent the government 

at the immigration court proceeding. Def.’s SOF ¶ 9; Pl.’s SOF ¶ 4. The Assessment is not 

provided to the asylum applicant. Def.’s SOF ¶ 9. Instead, USCIS generates a Referral Notice, 

which informs the out-of-status applicant that USCIS cannot grant the asylum request and that 

the case was referred to the immigration court. Id. ¶ 10; Pl.’s SOF ¶ 5. The Referral Notice also 

informs the applicant of the reasons for the denial of the application and of the right to renew the 

asylum request before the immigration court, which will conduct a de novo review. Def.’s SOF 

¶ 12. If the immigration judge denies the asylum application, the alien can appeal that decision 

to the Board of Immigration Appeals, and then to the Court of Appeals. Id. ¶ 15. 

At the de novo immigration proceeding before the immigration court, the alien’s statutory 

rights are governed by 8 U.S.C. § 1229a. Among those rights, and most pertinent to this case, is 

the requirement that “the alien shall have a reasonable opportunity to examine the evidence 

against the alien, to present evidence on the alien’s own behalf, and to cross examine witnesses 

presented by the Government.” 8 U.S.C. § 1229a(b)(4)(B). 
4 

A DHS lawyer may – but is not required to – present the Assessment prepared by the AO 

as evidence at the immigration proceeding. Pl.’s SOF ¶ 10; Def.’s SOF ¶ 14. If the lawyer elects 

to do so, then section 1229a(b)(4)(B) requires that the alien be accorded a reasonable opportunity 

to examine the Assessment. Def.’s SOF ¶ 14.

II. FACTUAL BACKGROUND 

 Plaintiff Anteneh Abtew is a native and citizen of Ethiopia. Pl.’s SOF ¶ 1. On February 

17, 2012, he arrived in the United States on a tourist visa, which has since expired. Id.; Def.’s 

SOF ¶ 3. He applied for asylum in the United States with USCIS as an out-of-status applicant,1

and on October 9, 2012, an AO in the Arlington Asylum Office interviewed him about his 

application. Pl.’s SOF ¶ 1. During the interview, the AO and plaintiff communicated through an 

interpreter, and the AO took notes. Id. 

After the interview, the AO prepared a four-page Assessment. Id. ¶¶ 2–3; Def’s SOF ¶ 6. 

The Assessment memorialized the AO’s recommendation that plaintiff’s asylum application 

should be denied, and after review, the AO’s supervisor initialed it. Pl.’s SOF ¶ 2; Def.’s SOF 

¶¶ 6–7. The Assessment was then placed into plaintiff’s file, and that file was transferred to the 

DHS lawyer who will represent the United States at plaintiff’s immigration proceeding. Pl.’s 

SOF ¶ 4; Def.’s SOF ¶ 9. Plaintiff was not provided a copy of the Assessment. Def.’s SOF ¶ 9.

USCIS then generated a Referral Notice, informing plaintiff of USCIS’s decision. The 

Referral Notice stated that USCIS reached its decision because of “[m]aterial inconsistency(ies) 

between [plaintiff’s] testimony and application and/or other evidence[,] [m]aterial 

inconsistency(ies) within [plaintiff’s] testimony[,] [and] [l]ack of detail(s) on material points.” 

 

1 Because plaintiff’s visa expired prior to the filing of his application for asylum, he is 

considered an out-of-status applicant. 
5 

Referral Notice, Ex. E to Decl. of Jill Eggleston, Ex. A to Def.’s Mot. (“Referral Notice”) [Dkt. 

# 23-1]; see also Pl.’s SOF ¶ 5; Def.’s SOF ¶¶ 10–11. It also informed plaintiff of the next steps 

in the process: that the asylum case would be referred to an immigration judge for further 

proceedings, that the referral is not a denial of the asylum application, and that USCIS’s initial 

decision to deny the petition is not binding on the immigration judge, who will conduct a de novo

review of plaintiff’s request. Referral Notice; see also Def.’s SOF ¶ 12. Plaintiff’s immigration 

court proceeding is scheduled for February 18, 2015. Pl.’s SOF ¶ 9.

 On November 11, 2012, plaintiff submitted a FOIA request to obtain a copy of the 

Assessment as well as the notes the AO took during plaintiff’s interview. Pl.’s FOIA Request, 

Ex. A to Decl. of Jill Eggleston, Ex. A to Def.’s Mot. [Dkt. # 23-1]. In response, defendant 

produced ninety-two pages in their entirety and five pages in part, while withholding twentythree pages in full under FOIA Exemptions 5, 6, 7C, and 7E. Resp. to Pl.’s FOIA Request, Ex. C 

to Decl. of Jill Eggleston, Ex. A to Def.’s Mot. [Dkt. # 23-1]. Plaintiff appealed the 

withholdings, Pl.’s FOIA Appeal, Ex. D to Decl. of Jill Eggleston, Ex. A to Def.’s Mot. [Dkt. 

# 23-1], and that appeal was denied. Appeal Denial Letter, Ex. E to Decl. of Jill Eggleston, Ex. 

A to Def.’s Mot. [Dkt. # 23-1]. 

Plaintiff then filed this FOIA action against DHS, seeking to obtain (1) the notes of the 

AO and (2) the Assessment, Compl. ¶¶ 54–59, as well as a declaration that the continued 

withholding of those documents violated plaintiff’s rights under 8 U.S.C. § 1229a(b). Id. ¶¶ 60–

65. Defendant subsequently released the notes to plaintiff – rendering Count I moot – but it 

continued to invoke the deliberative process privilege to withhold the Assessment. Def.’s 

Answer at 1 [Dkt. # 15]. The parties filed cross-motions for summary judgment, and the Court 

ordered production of the Assessment for in camera review. 
6 

STANDARD OF REVIEW 

Summary judgment is appropriate “if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). The party seeking summary judgment bears the “initial responsibility of informing the 

district court of the basis for its motion, and identifying those portions of the pleadings, 

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 

any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat 

summary judgment, the non-moving party must “designate specific facts showing that there is a 

genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual 

dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the 

non-moving party; a fact is only “material” if it is capable of affecting the outcome of the 

litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). 

“The rule governing cross-motions for summary judgment . . . is that neither party waives 

the right to a full trial on the merits by filing its own motion; each side concedes that no material 

facts are at issue only for the purposes of its own motion.” Sherwood v. Wash. Post, 871 F.2d 

1144, 1148 n.4 (D.C. Cir. 1989), quoting McKenzie v. Sawyer, 684 F.2d 62, 68 n.3 (D.C. Cir. 

1982). In assessing each party’s motion, “[a]ll underlying facts and inferences are analyzed in 

the light most favorable to the non-moving party.” N.S. ex rel. Stein v. District of Columbia, 709 

F. Supp. 2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247. 

ANALYSIS

 The cross-motions for summary judgment raise two issues: first, the Court must 

determine whether defendant properly invoked FOIA Exemption 5 to deny plaintiff’s request for 
7 

the Assessment completed in connection with his asylum petition, and if so, whether defendant 

reasonably segregated all nonexempt material from that document (Count II). And second, the 

Court must decide whether the withholding of the Assessment violates plaintiff’s rights under 8 

U.S.C. § 1229a(b)(4)(B) (Count III). 

I. Exemption 5 covers the Assessment in this case. 

FOIA Exemption 5 bars disclosure of “inter-agency or intra-agency memorandums or 

letters which would not be available by law to a party other than an agency in litigation with the 

agency.” 5 U.S.C. § 552(b)(5). A document may be properly withheld under Exemption 5 only 

if it satisfies “two conditions: its source must be a [g]overnment agency, and it must fall within 

the ambit of a privilege against discovery under judicial standards that would govern litigation 

against the agency that holds it.” U.S. Dep’t of Interior v. Klamath Water Users Protective 

Ass’n, 532 U.S. 1, 8 (2001). This Circuit has interpreted Exemption 5 “to encompass the 

protections traditionally afforded certain documents pursuant to evidentiary privileges in the civil 

discovery context, including materials which would be protected under the attorney-client 

privilege, the attorney work-product privilege, or the executive deliberative process privilege.” 

Formaldehyde Inst. v. Dep’t of Health & Human Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989) 

(internal quotation marks omitted). The agency seeking to withhold a document bears the 

burden of showing that it falls within the cited exemption. Natural Res. Def. Counsel, Inc. v. 

Nuclear Regulatory Comm’n, 216 F.3d 1180, 1190 (D.C. Cir. 2000). 

Here, defendant invokes Exemption 5 to justify its withholding of the Assessment, stating 

that the document falls under the executive deliberative process privilege. Def.’s Mot. at 5. 

Plaintiff advances nine arguments as to why Exemption 5 cannot be invoked in this case. Pl.’s 

Mot. at 8–30. These arguments can be organized into two categories: (A) those that claim that 

the deliberative process privilege, and therefore Exemption 5, do not cover the Assessment; and 
8 

(B) those that posit that even if the Assessment is covered by the deliberative process privilege, 

defendant still cannot invoke Exemption 5 to justify its withholding the Assessment.2

 Id. 

Neither category of arguments withstands scrutiny. 

A. The Assessment falls within Exemption 5 because it is protected by the deliberative 

process privilege.

“The deliberative process privilege rests on the obvious realization that officials will not 

communicate candidly among themselves if each remark is a potential item of discovery,” and its 

purpose “is to enhance ‘the quality of agency decisions’ by protecting open and frank discussion 

among those who make them within the [g]overnment.” Klamath, 532 U.S. at 8–9 (internal 

quotation marks and citations omitted). As a result, it only “protects agency documents that are 

both predecisional and deliberative.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 

2006); see also McKinley v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d 331, 339 (D.C. Cir. 

2011). This Circuit has held that “a document [is] predecisional if ‘it was generated before the 

adoption of an agency policy’ and deliberative if ‘it reflects the give-and-take of the consultative 

process.’” Judicial Watch, 449 F.3d at 151, quoting Coastal States Gas Corp. v. U.S. Dep’t of 

Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). As the D.C. Circuit has stated, documents fall 

within the purview of the deliberative process privilege “only if they ‘reflect[] advisory opinions, 

recommendations, and deliberations comprising part of a process by which governmental 

decisions and policies are formulated, [or] the personal opinions of the writer prior to the 

agency’s adoption of a policy.” Public Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 

875 (D.C. Cir. 2009), quoting Taxation With Representation Fund v. IRS, 646 F.2d 666, 677 

(D.C. Cir. 1981). 

 

2 Plaintiff does not contest that the Assessment satisfies the first condition of Exemption 5 

– that the document withheld be an inter-agency or intra-agency memorandum or letter. See

Pl.’s Mot. at 8–30. As a result, the Court finds that requirement is satisfied in this case. 
9 

Applying that framework here, the Court finds that the Assessment is predecisional and 

deliberative, and that it therefore falls under the deliberative process privilege. In a declaration 

submitted along with defendant’s cross-motion for summary judgment, Jill A. Eggleston – the 

Assistant Center Director in the FOIA and Privacy Act Unit, National Records Center, USCIS –

explains that the Assessment at issue in this case is a document that “predates USCIS’s decision 

to not grant asylum to the Plaintiff,” and that “[t]he document forms the basis for the decision to 

not grant the Plaintiff asylum and instead refer him to an immigration judge for removal 

proceedings.” Decl. of Jill A. Eggleston (“Eggleston Decl.”), Ex. A to Def.’s Mot. ¶¶ 1, 17 [Dkt. 

# 23-1].3

 She also explains that the AO writes the Assessment “in narrative form, and explains 

the officer’s concerns, discusses possible legal insufficiencies in the application, and the reasons 

for the decision to refer the case to the immigration court,” which makes it an “essential part of 

the USCIS deliberative process that leads to the ultimate determination to deny an alien’s 

application for asylum” and to instead refer the out-of-status applicant for removal proceedings. 

Id. ¶ 17. 

In other words, the Eggleston declaration verifies that the AO writes the Assessment 

before a final decision is made; that the Assessment is an essential tool in making that decision; 

 

3 Plaintiff argues that the Court cannot rely on the Eggleston Declaration because 

Eggleston did not state that she has any personal knowledge of the procedures inside an asylum 

office or that she read the Assessment in this case. Pl.’s Opp. to Def.’s Mot. (“Pl.’s Opp.”) at 4 

[Dkt. # 26]. But as another court in this district previously explained, the “extent of Eggleston’s 

knowledge of the asylum process is largely irrelevant. What matters is her capacity to explain 

the legal basis for the defendant’s withholding of the assessment under the FOIA.” Anguimate v. 

U.S. Dep’t of Homeland Sec., 918 F. Supp. 2d 13, 19 (D.D.C. 2013). Moreover, the last 

paragraph of the declaration explains that the Assessment is fully described in the declaration, 

that she is familiar with the matters described in the declaration, and that she can “attest to the 

accuracy of the document descriptions and applicability of the FOIA exemptions asserted.” 

Eggleston Decl. ¶ 20. This is sufficient for the Court to be able to rely on the declaration. See 

Anguimate, 918 F. Supp. 2d at 19. 
10 

and that the Assessment includes the AO’s personal thoughts about the merits of the asylum 

case. It is therefore both predecisional and deliberative, bringing it under the protection of the 

deliberative process privilege.4

 See Abramyan v. U.S. Dep’t of Homeland Sec., No. 12-1064, 

2013 WL 6247338, at *6 (D.D.C. Dec. 4, 2013) (holding that the Assessment to Refer in that 

 

4 Plaintiff argues that the Assessment is not deliberative because it does not reflect the 

give-and-take of the consultative process, since the AO writes the document on his or her own. 

Pl.’s Opp. at 4–5, 11–12. But this is an overly narrow view of what can be part of the 

deliberative process. The Assessment transmits the AO’s thoughts to a supervisory official and 

it is a step leading to the issuance of a decision; just because it includes the “give,” but not the 

“take,” does not take it outside the scope of the conversation. And as plaintiff acknowledges, 

protecting the give-and-take of the consultative process is only one of the reasons for the 

privilege, and a document is considered deliberative if it includes recommendations for how a 

decision should be made, which the Assessment does. See Coastal States, 617 F.2d at 866. 

 Similarly, plaintiff’s argument that deliberative process privilege should not apply to this 

case because the frequent disclosure of Assessments in immigration courts cuts against the need 

to protect the internal discussions of AO officers also fails. Pl.’s Opp. at 5, 12–13; Pl.’s Reply in 

Supp. of Pl.’s Mot. (“Pl.’s Reply”) at 1, 3, 16 [Dkt. # 25]. Putting aside the realization that just 

because a privilege is waived in one context does not mean that it is less important in another 

context, the Court cannot force disclosure under FOIA on this ground alone. As another court in 

this district has recognized, the D.C. Circuit has instructed district courts not “to ‘second-guess 

. . . congressional judgment’” that a document is subject to the protections of the deliberative 

process privilege “‘on a case-by-case basis’; rather, once it is determined that the two elements 

of the deliberative process privilege are satisfied, the judicial inquiry is complete.” Anguimate, 

918 F. Supp. 2d at 20, quoting McKinley, 647 F.3d at 339. 
11 

case was both predecisional and deliberative); Anguimate v. U.S. Dep’t of Homeland Sec., 918 F. 

Supp. 2d 13, 18–21 (D.D.C. 2013) (same).5

Plaintiff’s arguments do not alter that conclusion. First, he argues that the Assessment is 

a final, post-decision document because it was initialed by the Supervisory AO and sent to a 

DHS lawyer who would represent the government in plaintiff’s removal proceeding before the 

immigration court. Thus, he contends that the Assessment is the document that “disposes” of 

plaintiff’s request for asylum to the extent that it is before USCIS. Pl.’s Mot. at 18–19. But the 

document cannot be postdecisional in the literal sense of the word because the AO drafted it 

before the final decision was made, and the requirement that the Supervisory AO review the 

Assessment does not somehow transform it into a “final agency” decision just because the 

supervisor initialed it; the Supervisory AO’s initials are not just a “rubber stamp.” See 

Abramyan, 2013 WL 6247338, at *6. Moreover, the Assessment does not actually “dispose” of 

plaintiff’s asylum petition. It is the Decision Letter – in this case, the Referral Notice – that 

 

5 Plaintiff argues that Anguimate and Abramyan are distinguishable because at the time the 

courts found that the Assessments at issue in those cases were protected by the deliberative 

process privilege and therefore properly withheld under Exemption 5, the plaintiffs in those cases 

had already been granted asylum by the immigration court. Pl.’s Mot. at 9–10; Pl.’s Opp. at 9–

11. But that procedural posture does not distinguish the legal question in those cases from the 

one in front of this Court: although in Anguimate and Abramyan the procedural posture 

guaranteed that the government would not later introduce the Assessment before the immigration 

court, the government has not yet used – and may ultimately decide not to use – the Assessment 

at issue here in plaintiff’s immigration proceeding. As a result, 8 U.S.C. § 1229a has not been 

implicated as of the date of the decision of this case and, despite plaintiff’s arguments to the 

contrary, defendant has not adopted the Assessment as its final decision. The Court therefore 

finds the cases to be persuasive in resolving plaintiff’s claims in this case. Indeed, the distinction 

indicates that plaintiff may very well receive a copy of the Assessment in the future without any 

action by this Court. 
12 

officially disposes of the asylum petition on behalf of USCIS.6

 Eggleston Decl. ¶ 17 (“The 

Agency’s final decision is the Referral Notice, which is signed by the [Supervisory AO] for the 

Director of Asylum Office.”). 

The cases plaintiff relies on to support his point that the Assessment is the final decision 

that disposes of the case do not support his position. See Pl.’s Mot. at 18–20. It is true that the 

Supreme Court has held that Exemption 5 cannot be invoked to withhold documents that must be 

disclosed under section 552(a)(2)(A), see NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975), 

because they are “final opinions, including concurring and dissenting opinions, as well as orders, 

made in the adjudication of cases.” 5 U.S.C. § 552(a)(2)(A); see also Pl.’s Mot. at 18–20. But 

the cases plaintiff cites applying that principle involve either a decision not to institute judicial 

proceedings, therefore “adjudicating” the merits of the case, see Rockwell Int’l Corp. v. U.S. 

DOJ, 235 F.3d 598, 603 (D.C. Cir. 2001) (dealing with a document that memorialized the 

decision not to prosecute a U.S. Attorney), or the actual adjudication of a case, resulting in a 

finding of liability that could only be displaced if successful on appeal. See Am. Mail Line, Ltd. 

v. Gulick, 411 F.2d 696 (D.C. Cir. 1969) (involving a case where the Maritime Subsidy Board 

ordered the plaintiff to refund $3 million in subsidies); Nat’l Prison Project of Am. Civil 

 

6 Plaintiff argues that there is a factual dispute as to whether the Assessment or the Referral 

Notice is the final decision by USCIS with respect to plaintiff’s asylum petition. Pl.’s Opp. at 2–

3; Pl.’s Reply at 10. But what constitutes a “final decision” is not a factual question; it a legal 

one that can be properly decided by this Court. And the evidence before this Court indicates that 

the Referral Notice is the final decision, not the Assessment. The Referral Notice was written 

after USCIS made the final decision to deny plaintiff’s request, and it notified plaintiff of that 

decision and his appeal rights. The Assessment, on the other hand, contains the 

recommendations of an AO on what the final decision about plaintiff’s asylum request should be, 

it was written before the final decision was made, and – as discussed more below – it was not 

adopted as or incorporated into USCIS’s final decision. Accordingly, the Court finds that the 

Referral Notice was the final decision in this case. This conclusion is not altered just because the 

Referral Notice is created “by checking boxes on a computer.” Pl.’s Opp. at 5.
13 

Liberties Union Found., Inc. v. Sigler, 390 F. Supp. 789 (D.D.C. 1975) (finding that a written 

denial of parole is a final order for purposes of FOIA). Neither of those situations is present 

here: the denial of plaintiff’s asylum application initiates and does not conclude judicial 

proceedings and, although the AO investigated plaintiff’s asylum request and compared different 

factual claims, it does not rise to the level of an “adjudication” because the matter will be 

determined de novo in the immigration court. 

Moreover, the other three cases to which plaintiff refers deal with documents that set 

forth the agency’s interpretation of its regulations or statutes in the context of a particular set of 

facts. See Schlefer v. United States, 702 F.2d 233 (D.C. Cir. 1983); Coastal States, 617 F.2d at 

854; Tax Analysts & Advocates v. IRS, 362 F. Supp. 1298 (D.D.C. 1973). The documents were 

prepared by higher-level officials and created the internal agency “law” that guided the decisionmaking process of lower-level officials. But a recommendation that an asylum petition be 

denied does not set out “law” for AOs to apply in future cases or an interpretation of an 

ambiguous statutory provision. It is a recommendation as to how USCIS should proceed with a 

particular application, and therefore there is no concern in this case that the agency is developing 

“secret law” that it is trying to hide from the public. Compare Coastal States, 617 F.2d at 868 

(explaining that the documents at issue in that case were not protected by the deliberative process 

privilege because they were “not advice to a superior, nor [were] they suggested dispositions of a 

case,” and instead they were “akin to a ‘resource’ opinion about the applicability of existing 

policy to a certain state of facts, like examples in a manual, to be contrasted to a factual or 

strategic advice giving opinion”). Furthermore, the Assessment is not a higher-level official 

telling a lower-level official how to exercise his or her discretion: it is a recommendation that 
14 

flows from the lower-level employee to a higher-level official. As a result, those cases offer no 

guidance here. 

And finally, the Supreme Court’s holding in NLRB v. Sears, Roebuck & Co. – the case 

that established the rule that Exemption 5 cannot justify withholding documents that must be 

released under section 552(a)(2)(A) – actually supports the continued withholding of the 

Assessment under Exemption 5 in this case. In Sears, the Supreme Court addressed whether an 

Advice and Appeals Memorandum (“AAM”) issued by the General Counsel of the National 

Labor Relations Board (“NLRB”) regarding whether he would file a complaint based on a 

private party’s report of a potential NLRA violation could be withheld as an intra-agency 

memorandum under Exemption 5 or whether it was a “final opinion” as defined in 5 U.S.C. 

§ 552(a)(2)(A). 421 U.S. at 136. The Court held that an AAM that memorialized the decision to 

not file a complaint was a final agency opinion because it adjudicated the potential issue and 

foreclosed any potential judicial proceedings unless the party seeking legal action successfully 

appealed the General Counsel’s decision. Id. at 155–59. But the Court found that an AAM that 

agreed to file a complaint was not a final agency decision, and therefore could be protected by 

Exemption 5, because the decision did not mark the end of the case, but merely allowed the 

claim to proceed in a judicial forum. Id. at 159–60. 

Here, the Assessment is similar to the AAM that authorized the filing of an NLRA 

complaint: the Assessment does not mark the end of plaintiff’s asylum petition or subject him to 

a final determination of his status that can only be challenged on appeal. Instead, it requires the 

case to go forward to the immigration court for removal proceedings and a de novo

determination of plaintiff’s asylum petition by that judge. Accordingly, the Court finds that the 

Assessment is not a document that is required to be disclosed under section 552(a)(2)(A) and 
15 

therefore that the section has no impact on defendant’s ability to invoke Exemption 5 to withhold 

the Assessment in this case. 

Plaintiff’s second argument – that, even if the Assessment was predecisional at one time, 

it lost that status when it was adopted as the position of the agency, Pl.’s Mot. at 20–21 – also 

fails. There is nothing in the record that supports the conclusion that the Assessment was 

adopted as the agency’s final decision. As an initial point, it does not automatically follow that 

just because USCIS rejected plaintiff’s request for asylum, it formally or informally adopted the 

Assessment as its final decision.7

 Compare Am. Soc’y of Pension Actuaries v. IRS, 746 F. Supp. 

188, 191 (D.D.C. 1990) (“[T]he simple fact that an intra-agency deliberative memorandum 

reaches the same conclusion as the ultimate decision-maker provides no guarantee that the 

memorandum represents the views actually adopted by the government.”); see also id. (noting 

that certain documents that were deliberative were nonetheless available under FOIA because the 

government adopted the $666 million dollar figure and “when . . . the government states a budget 

estimate with numerical specificity, the public is entitled to presume that a particular set of 

calculations and assumptions underlie the estimate,” even if not specifically mentioned in the 

final order). The Referral Notice – which informed plaintiff of USCIS’s decision to deny his 

request – does not mention or incorporate the Assessment, see Referral Notice, and there is no 

evidence to show that, other than adopting the general recommendation to deny plaintiff’s 

 

7 For this reason, the Court is not persuaded by plaintiff’s argument that defendant’s 

statement of material facts in dispute supports his contention that the Assessment is the final 

decision of USCIS: “When this assessment was approved by [the AO’s supervisor, the 

supervisor] initialed it, and it became USCIS’s decision that Abtew’s asylum application should 

be addressed in [immigration [sic] court.” Pl.’s Opp. at 2, quoting Def.’s SOF ¶ 8. But the 

statement quoted does not say that the Assessment was the final decision as plaintiff suggests; 

instead, the statement provides that the recommendation to deny plaintiff’s asylum request, 

which is set forth in the Assessment, became the agency’s final decision, but not necessarily the 

underlying reasons. 
16 

asylum request at this stage, the agency adopted all of the reasons that the AO included in the 

Assessment.8

 Cf. Coastal States, 617 F.2d at 866 (citation omitted) (noting that the deliberative 

process privilege, among other things, is designed “to protect against confusing the issues and 

misleading the public by dissemination of documents suggesting reasons and rationales for a 

course of action which were not in fact the ultimate reasons for the agency’s action”). Instead, 

the Referral Notice provided its own explanation for the denial of plaintiff’s asylum request. See 

Referral Notice. As a result, the Assessment did not lose its protected status when USCIS issued 

the Referral Notice.9

 See Sears, 421 U.S. at 161 (emphasis added) (explaining that “if an agency 

chooses expressly to adopt or incorporate by reference an intra-agency memorandum previously 

covered by Exemption 5 in what would otherwise be a final opinion,” the memorandum loses its 

protected status under Exemption 5). 

Furthermore, plaintiff’s reasoning that the Assessment was adopted as the official agency 

position because it is now in the hands of the DHS lawyer who is responsible for representing the 

government at plaintiff’s immigration proceeding is one step ahead of the facts. His argument is 

premised on a quotation taken from Coastal States: “[E]ven if the document is predecisional at 

the time it is prepared, it can lose that status if it is adopted, formally or informally, as the agency 

position on an issue or is used by the agency in its dealing with the public.” Pl.’s Mot. at 21, 

 

8 For this reason, Tax Analysts, 362 F. Supp. at 1303–05 (dealing with IRS letter rulings), 

and Badran v. DOJ, 652 F. Supp. 1437, 1439 (N.D. Ill. 1987) (addressing INS’s decision to set a 

bond amount), are distinguishable because the documents sought were expressly relied on in 

making the final agency decision in those cases. 

9 Plaintiff’s comparison of a NOID and an Assessment is unpersuasive. The NOID is 

issued to an asylum applicant who makes the request at the time he or she is still legally within 

the country. It is a final decision, save the appeal process, and does not result in a de novo

immigration court proceeding. Put differently, the NOID itself is the agency’s final decision. As 

a result, it would not be covered by the deliberative process privilege, making a comparison 

between it and an Assessment of limited value here. 
17 

quoting Coastal States, 617 F.2d at 866. Plaintiff thus maintains that “[i]f the DHS uses a 

document in Immigration Court, the document is public.” Id. But the document has not been 

used in immigration court as of the date of this opinion, and the claim that it will be used in the 

future is speculative. A DHS lawyer is not required to introduce an Assessment at the removal 

proceeding.10 The Assessment therefore retains its predecisional and deliberative status, making 

it subject to the protections of the deliberative process privilege and permitting defendant to 

assert Exemption 5 to justify its withholding. 

B. Plaintiff’s remaining arguments for why the Court should not allow defendant to 

invoke FOIA Exemption 5 to withhold the Assessment are unpersuasive. 

Plaintiff offers seven reasons why Exemption 5 cannot be invoked to withhold the 

Assessment in this case, but none of them alter the result. 

 First, plaintiff argues that documents that are routinely available through civil discovery 

“must also be disclosed under FOIA.” Pl.’s Mot. at 8; Pl.’s Opp. to Def.’s Mot. (“Pl.’s Opp.”) at 

4 [Dkt. # 26]; Pl.’s Reply in Supp. of Pl.’s Mot. (“Pl.’s Reply”) at 5–6 [Dkt. # 25]. Although 

plaintiff is correct that “the parameters of Exemption 5 are determined by the reference to the 

protections available to litigants in civil discovery,” Burka v. U.S. Dep’t of Health & Human 

Servs., 87 F.3d 508, 516 (D.C. Cir. 1996), the deliberative process privilege protects against 

disclosure of a document in civil discovery.11 As a result, the Court’s conclusion that the 

deliberative process privilege applies to the Assessment forecloses this argument. 

 

10 Similarly, plaintiff’s argument that the government cannot argue that the Assessment is 

not final here because it may later argue that the Assessment is authoritative and should carry 

weight in the immigration proceeding is unpersuasive. See Pl.’s Mot. at 12; Pl.’s Reply at 10. In 

any event, if the Assessment is expressly relied upon, it will be produced. 

11 Plaintiff cannot get around this conclusion by characterizing his FOIA request as one for 

“alleged ‘prior inconsistent statement’ or a transcript of a deposition,” Pl.’s Reply at 5, because it 

is not a verbatim transcript of plaintiff’s interview. See Eggleston Decl. ¶ 17.
18 

Plaintiff’s second argument is that 8 U.S.C. § 1229a(b) blocks invocation of Exemption 5 

because that “statute compels the DHS to share the assessment with” plaintiff before it is offered 

into evidence, and FOIA’s exemptions may not block a disclosure that is statutorily required. 

Pl.’s Mot. at 9–10. But plaintiff’s argument is once more premature. Section 1229a(b)(4)(B) 

provides that, at the immigration proceeding, an “alien shall have a reasonable opportunity to 

examine the evidence against the alien.” 8 U.S.C. § 1229a(b)(4)(B). Any “right” that attaches 

under that section exists because the evidence is, or will be, introduced; it does not exist in the 

abstract because the government might introduce something. Section 1229a(b)(4)(B) therefore 

has no relevance in deciding whether defendant may invoke Exemption 5.12

Plaintiff’s third argument fails for similar reasons. Plaintiff asserts that “[t]he DHS is 

planning to use the Assessment in Immigration Court in the future; therefore it has waived 

 

12 In support of this argument, plaintiff directs the Court to DOJ v. Julian. 486 U.S. 1, 14 

(1988). In that case, the Supreme Court found that neither FOIA Exemption 3 nor 5 could be 

invoked to prevent an individual from obtaining access to his presentence report: Exemption 3 

did not apply because the two statutes cited as prohibiting disclosure of the presentence report 

actually required its disclosure to the defendant, save three categories of information; and 

Exemption 5 did not apply be there was no recognized privilege against disclosure of a 

presentence report to the person that it was about. Id. at 7–14. That case is distinguishable on two 

grounds. First, the Assessment is not withheld under Exemption 3, so discussion of whether 

another statute prohibits or requires its disclosure is not relevant. But even if it were, as discussed 

above, section 1229a(b)(4)(B) requires disclosure of “evidence against” the alien, which means 

that, as a prerequisite to the invocation of that provision, evidence must have been offered at the 

immigration proceeding. And second, as this Court found above, there is a privilege against 

disclosure of the Assessment that justifies the invocation of Exemption 5 in this case. Section 

1229a(b)(4)(B)’s requirement is consistent with that finding because, to the extent that the 

Assessment is introduced into evidence and therefore triggers that section’s disclosure 

requirement, defendant would have waived the privilege and its ability to invoke Exemption 5. 

Plaintiff’s reliance on Julian is therefore misplaced. Similarly, plaintiff cannot rely on the 

discussion in DOJ v. Tax Analysts, 492 U.S. 136 (1989), where the Supreme Court refused to 

imply a FOIA exemption on the ground that another statute governed the disclosure of the 

documents sought. See Pl.’s Reply at 6, quoting Tax Analysts, 492 U.S. at 154; see also Pl.’s 

Opp. at 16. Defendant does not justify its withholding in this case on the ground that section 

1229a(b)(4)(B) trumps FOIA; it argues that the deliberative process privilege protects that 

document under Exemption 5 unless and until that privilege is waived.. 
19 

whatever privilege may have attached.” Pl.’s Mot. at 10–16; Pl.’s Reply at 6–7. But it is 

axiomatic that a party does not waive a privilege by intending to take an action in the future; 

privilege is waived only when that action is actually taken. As a result, plaintiff cannot rely on 

the principle that voluntary disclosures may waive privileges because defendant has not made 

any voluntary disclosure or taken any action that would waive the deliberative process privilege 

at this time, and all of plaintiff’s arguments relating to defendant’s alleged waiver of the 

privilege are cast in the future tense.13 See Pl.’s Mot. at 10 (“DHS states if the Assessment is 

 

13 For this reason, plaintiff’s argument that defendant cannot unilaterally use the 

Assessment and then claim the privilege must fail: Defendant has not yet attempted to use the 

Assessment against plaintiff in immigration court, see Pl.’s Mot. at 11 (“Defendant plans to use 

the Assessment . . . .”), which makes the cases plaintiff relies on inapplicable. See United States 

v. Nobles, 422 U.S. 225 (1975) (calling an investigator to testify waived the privilege); Cottone 

v. Reno, 193 F.3d 550 (D.C. Cir. 1999) (permitting disclosure of tapes introduced at trial); In re 

Grand Jury Proceedings, 219 F.3d 175 (2d Cir. 1999) (questioning whether the disclosure of 

advice from an attorney at a grand jury proceeding waived privilege); In re Martin Marietta 

Corp., 856 F.2d 619 (4th Cir. 1988) (finding that the corporation’s prior disclosure of privileged 

material in settlement discussions waived the privilege and prevented its assertion in a later 

case); In re von Bulow, 828 F.2d 94 (2d Cir. 1987) (involving disclosure of privileged 

information in book); In re Subpoenas Duces Tecum, 738 F.2d 1367 (D.C. Cir. 1984) (noting 

that prior disclosure of privileged material prevented invocation of the privilege in later 

litigation); Cooper v. U.S. Dep’t of Navy, 594 F.2d 484 (5th Cir. 1979) (same); Fidelity Nat’l 

Fin. v. Nat’l Union Fire Ins. Co., No. 9-0140, 2011 WL 13580, at *1 (S.D. Cal. Jan. 4, 2011) 

(finding no waiver when privileged material is shared with others as part of a joint strategy); 

Nat’l Immigration Project of the Nat’l Lawyers Guild v. DHS, 842 F. Supp. 2d 720 (S.D.N.Y. 

2012) (noting that privilege is waived when the privileged material is referred to and relied on at 

the appellate stage); SEC v. Lavin, 937 F. Supp. 23 (D.D.C. 1996), rev’d 111 F.3d 921 (D.C. Cir. 

1997) (finding waiver of the privilege where communications were knowingly taped, held by 

other entities, and never sought, but D.C. Circuit reversed); Fiumare v. Higgins, 572 F. Supp. 

1093 (D.N.H. 1983) (noting that prior disclosure of privileged material prevented invocation of 

the privilege in later litigation); Cooper v. IRS, 450 F. Supp. 752 (D.D.C. 1977) (same). 

And the other cases plaintiff relies on involve situations where previously privileged 

documents lose privileged status and protection under FOIA because they are incorporated into 

the agency’s policy. See Nat’l Council of La Raza v. DOJ, 411 F.3d 350 (2d Cir. 2005) 

(permitting disclosure of a formerly privileged memorandum because repeated references to it 

led to tis incorporation into DOJ policy); Brennan Ctr. for Justice at NYU Sch. of Law v. DOJ, 

No. 09-8756, 2011 WL 4001146, at *7 (S.D.N.Y. Aug. 30, 2011), rev’d in part on other grounds 

697 F.3d 184 (2d Cir. 2012) (same). Incorporation of the Assessment did not occur in this case.
20 

used . . . ;” “if defendant argues . . . ;” “the Assessment will be given to plaintiff Mr. Abtew, in 

the event it is used in court”) (emphasis added).

 Plaintiff’s fourth argument is that defendant should be judicially estopped from asserting 

the deliberative process privilege in this case because the government has consistently taken the 

position before immigration courts that the Assessment can be a useful and valuable tool in 

determining the credibility of the asylum applicant. Pl.’s Mot. at 17–18; Pl.’s Reply at 7–9. This 

argument fails for the same reason the waiver claims are unavailing. 

Judicial estoppel is an equitable rule that provides that “[w]here a party assumes a certain 

position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, 

simply because his interests have changed, assume a contrary position, especially if it be to the 

prejudice of the party who has acquiesced in the position formerly taken by him.” New 

Hampshire v. Maine, 532 U.S. 742, 749 (2001), quoting Davis v. Wakelee, 156 U.S. 680, 689 

(1895). It is meant “to protect the integrity of the judicial process, by prohibiting parties from 

deliberately changing positions according to the exigencies of the moment.” Id. at 749–50 

(citations and internal quotation marks omitted). Those concerns are not present here: the fact 

that DHS may choose to waive a privilege – or even regularly chooses to waive that privilege –

is not inconsistent with maintaining the position that the material is privileged in the first place. 

A party should not be estopped from asserting a privilege initially just because it may later waive 

that privilege if it finds it in its interest to do so. Here, defendant has not yet waived the privilege 

that covers the Assessment, and what it may or may not do in the future does not operate as 

estoppel. 

Plaintiff’s fifth argument echoes his judicial estoppel points: that an agency which is 

inconsistent is not entitled to deference by the courts. Pl.’s Mot. at 21–22; Pl.’s Reply at 10–11. 
21 

As examples of defendant’s inconsistent positions, plaintiff states that (1) “DHS frequently 

provided assessments to asylum applicants in the past,” (2) “DHS delivered the notes of the 

asylum officer to Mr. Abtew,” changing its position that the notes were exempt, and (3) DHS’s 

training manuals, that are included on its website, informs AOs that an asylum applicant “may 

submit a Freedom of Information Act [(FOIA)] request to obtain a copy of an assessment (and 

other information in the file).” Pl.’s Mot. at 21–23 (citations omitted); see also Pl.’s Opp. at 13; 

Pl.’s Reply at 10–11. But plaintiff offers no evidence to support his first contention, and as the 

Court has already noted, the fact that the Assessment may be revealed in litigation later does not 

bear upon the validity of the exemption. 

Similarly, the training manuals that plaintiff cites do not support a conclusion that 

defendant is being inconsistent in its position regarding the availability of the Assessment under 

FOIA. The training manuals alert AOs to the fact that an asylum applicant “may submit” a FOIA 

request to obtain the Assessment. They do not indicate that the request will be honored without 

contest. Finally, it is not unusual for a party to modify its position in litigation. And if plaintiff 

has concerns about defendant’s good faith, the Court has conducted its own in camera review of 

the Assessment, and it finds no reason to disturb the agency’s characterization of the document 

as deliberative.14 

 

14 Plaintiff argues that notes of an AO and the Assessment are similar, and therefore if the 

notes are not exempt, there is no reason to find the Assessment exempt. Pl.’s Opp. at 10–11, 13–

14. But that logic does not add up. The notes a person takes during an interview do not 

necessarily include the interviewer’s analysis or subjective opinion about the veracity or 

consistency of what the interviewee is saying. The Assessment, on the other hand, includes that 

type of subjective analysis, which is why the Court found it protected by the deliberative process 

privilege. And to the extent that the Assessment includes facts that are also included in the notes 

that have been disclosed, the Assessment can still be protected so long as the Court finds that the 

facts in the Assessment are so interwoven with the subjective analysis of the AO that they are 

necessarily deliberative in and of themselves. As described more fully below, the Court makes 

that finding in this case. 
22 

Plaintiff’s final two arguments are essentially policy arguments as to why the Court 

should not allow defendant to invoke Exemption 5 in this case: that invocation of Exemption 5 

threatens plaintiff’s rights under 8 U.S.C. § 1229a(b), Pl.’s Mot. at 23–26; Pl.’s Reply at 11, and 

that the “integrity of the judicial system and public confidence in the system depend on full 

disclosure of all the facts.” Pl.’s Mot. at 27–30. 

Once again, any argument that plaintiff’s rights under section 1229a(b) are threatened by 

the invocation of Exemption 5 is premature. Section 1229a(b)(4)(B) provides an alien with 

“reasonable opportunity to examine the evidence against him,” 8 U.S.C. § 1229a(b)(4)(B); it 

does not provide him with the right to obtain evidence that might be used against him in 

advance.15 Similarly, plaintiff’s additional section 1229a(b) arguments about fundamental 

 

15 Singh v. Holder, 405 F. App’x 193 (9th Cir. 2010), Hernandez-Guadarrama v. Ashcroft, 

394 F.3d 674 (9th Cir. 2005), Al Khouri v. Ashcroft, 362 F.3d 461 (8th Cir. 2004), and Cunanan 

v. INS, 856 F.2d 1373 (9th Cir. 1988), are distinguishable on that ground. See Pl.’s Mot. at 24, 

26. Moreover, plaintiff’s consistent characterization of defendant’s statements to mean that 

defendant will give the Assessment to plaintiff in the future misconstrues defendant’s pleadings. 

See, e.g., Pl.’s Reply at 11 (“DHS agrees that 8 U.S.C. § 1229a(b) gives rights to Abtew, and that 

eventually, DHS shall give [the Assessment] to him. Why not give it to him now?”). Although 

defendant acknowledges that section 1229a(b) gives plaintiff rights in his immigration 

proceeding that it must honor if it decides to use the Assessment, its acknowledgement that the 

Assessment will be provided is explicitly conditioned on a decision to actually use that 

Assessment in the proceeding. See Def.’s Mot. at 8; Def.’s SOF ¶ 14; Pl.’s SOF ¶ 11. That 

decision has not yet been made. Def.’s Mot. at 7.
23 

fairness do not negate the applicability of the FOIA exemption to a document that may not ever 

be introduced at the immigration proceeding.16 

 The Court recognizes the importance of the civil and criminal discovery mechanisms that 

plaintiff itemizes in his pleadings, see Pl.’s Mot. at 27–30; Pl.’s Reply at 12, but he will be 

afforded due process and discovery rights at the immigration hearing, including, if appropriate, a 

right to the Assessment under section 1229a(b)(4)(B). The analogy to civil discovery rules is 

inapposite since a work product privilege is recognized in that context as well, and the 

protections plaintiff lists that are offered to a criminal defendant arise in the context of an 

indictment and subsequent trial – not in advance of the initiation of court proceedings.17 

 

16 Plaintiff cites Dent v. Holder, 627 F.3d 365 (9th Cir. 2010) in support of his contention 

that fundamental fairness requires defendant to release the Assessment now. Pl.’s Mot. at 25. 

But Dent is distinguishable from this case because it involved a different provision of Title 8, 

which provides an alien with the right to “access . . . the alien’s visa or other entry document, if 

any, and any other records and documents not considered by the Attorney General to be 

confidential, pertaining to the alien’s admission or presence in the United States.” 8 U.S.C. 

§ 1229a(c)(2)(B). Moreover, the fundamental fairness discussions in Al Khouri, 362 F.3d at 464, 

and Hernandez-Guadarrama, 394 F.3d at 682, have no relevance in this case because any injury 

resulting to plaintiff from not permitting him enough time to review evidence or cross-examine 

witnesses against him to ensure fairness at his immigration proceeding is speculative at this time. 

See Singh, 405 F. App’x at 193 (noting that an alien may obtain a continuance, if needed, to 

review evidence presented against him at an immigration proceeding). 

17 Moreover, plaintiff is incorrect about the scope of discovery in the criminal context: for 

example, grand jury witnesses do not automatically get transcripts of their testimony. 
24 

As a result, the Court is unpersuaded by plaintiff’s arguments that defendant cannot 

invoke Exemption 5 as a justification for withholding the deliberative portions of the 

Assessment.18 

II. There are reasonably segregable portions of the Assessment that defendant must 

disclose.

Plaintiff argues in the alternative that, even if the document is properly withheld, the 

segregable facts contained in it are not deliberative and must be disclosed to him. Pl.’s Reply at 

12–14. Defendant states that the facts included in the Assessment are so interwoven with the 

deliberative portions of that document that they cannot be reasonably segregated and are 

therefore properly withheld. Def.’s Mot. at 4–5; Eggleston Decl. ¶ 17. The Court ordered 

production of the Assessment for in camera review in order to resolve this dispute. Apr. 29, 

2014 Minute Entry. 

Under FOIA, “[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.” 5 U.S.C. 

§ 552(b). This Circuit has held that any “non-exempt portions of a document must be disclosed 

unless they are inextricably intertwined with exempt portions.” Mead Data Cent., Inc. v. U.S. 

Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). 

After reviewing the Assessment in camera, the Court concludes that the first six 

paragraphs simply recite and summarize the facts that plaintiff presented to the AO during his 

 

18 The Court notes, though, that this case presents a unique situation where the document at 

issue may have significant repercussions for plaintiff if it is used at his immigration proceeding. 

Based on the potential significant impact that the document may have on plaintiff’s immigration 

status, as well as the strong likelihood that the Assessment will be introduced at plaintiff’s 

immigration proceeding and that such use would in fact waive the deliberative process privilege 

while simultaneously triggering the protection afforded to plaintiff by section 1229a(b)(4)(B), 

the Court encourages defendant to not delay in providing the Assessment to plaintiff if it 

ultimately decides it will be used in the immigration proceeding. 
25 

asylum application interview. Those paragraphs do not include any analysis or impressions, and 

they do not reflect the AO’s deliberative process: although the document does not purport to be 

a verbatim rendition of the interview, and there may have been some streamlining involved, the 

summary does not involve the sort of culling of facts from a large universe that could be 

characterized as deliberative. See Ancient Coin Collection Guild v. U.S. Dep’t of State, 641 F.3d 

504, 513 (D.C. Cir. 2011) (noting that factual summaries may reflect the predecisional, 

deliberative process where they indicate “an exercise of judgment as to what issues are most 

relevant to the pre-decisional findings and recommendations”). The paragraphs are therefore not 

protected by Exemption 5, and they are easily segregated from the privileged portions of the 

Assessment that follow. So, the first six paragraphs of the document must be disclosed to 

plaintiff. 

The remaining portions of the Assessment, however, are properly withheld under 

Exemption 5. Any facts contained in those paragraphs are interwoven with the AO’s reasoning 

and recommended disposition, and they cannot be reasonably segregated from the privileged 

material. Thus, defendant may continue to withhold the remaining portions of the Assessment 

under Exemption 5. 

III. Plaintiff’s claim that defendant’s failure to disclose the Assessment violates 8 

U.S.C. § 1229a(b) is not ripe. 

Count III of the complaint requests that this Court find that defendant violated plaintiff’s 

rights under 8 U.S.C. § 1229a(b)(4)(B) by failing to provide him with a copy of the Assessment. 

The parties disagree as to whether that section creates a private cause of action, Def.’s Mot. at 7; 

Pl.’s Opp. at 16, and defendant also asserts that this count should be dismissed as premature. 

Def.’s Mot. at 1. Because this claim is not ripe, it will be dismissed, and the Court need not 

reach the issue of whether plaintiff has a private cause of action under section 1229a. 
26 

Ripeness is a two-pronged inquiry: first, courts consider “the ‘fitness of the issues for 

judicial decision,’” and second, they consider “the extent to which withholding a decision will 

cause ‘hardship to the parties.’” Am. Petroleum Inst. v. EPA, 683 F.3d 382, 387 (D.C. Cir. 

2012), quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967). Here, plaintiff’s rights under 

section 1229a(b)(4)(B) are not “fit for judicial decision” because, as indicated above, they have 

not yet been triggered. Defendant has not yet sought to introduce the Assessment as evidence 

against plaintiff at the immigration proceeding or even indicated that it will do so. And it is 

entirely speculative that plaintiff will suffer any harm because he has to wait; at this point, we do 

not know whether plaintiff will be entitled to review the document, and how much time he will 

be given if he is. As a result, the Court finds that Count III of the complaint is not ripe and 

should be dismissed. 
27 

CONCLUSION 

Because the Assessment is covered by the deliberative process privilege and because that 

privilege has not been waived as of the date of this opinion, the Court finds that defendant 

properly withheld the document under FOIA Exemption 5. But it also finds that the first six 

paragraphs of the document are not deliberative and that they are reasonably segregable from any 

protected information, so defendant must therefore release those paragraphs to plaintiff. The 

Court will therefore grant defendant’s motion for summary judgment in part and deny it in part, 

while also granting plaintiff’s motion for summary judgment in part and denying it in part with 

respect to Count II. 

Additionally, the Court finds that Count III of the complaint is premature because the 

rights plaintiff seeks to protect have not yet been triggered. As a result, the Court will dismiss 

Count III on ripeness grounds. A separate order will issue. 

AMY BERMAN JACKSON 

United States District Judge 

DATE: June 13, 2014