UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CENTER FOR IMMIGRATION STUDIES,

Plaintiff, Case No. 1:22-cv-02107 (TNM) v.

U.S. CITIZENSHIP AND IMMIGRATION SERVICES.

Defendant.

MEMORANDUM OPINION

The Center for Immigration Studies sought disclosure of a litany of documents from the

U.S. Citizenship and Immigration Services related to the Department of Homeland Security’s

Temporary Protected Status designation of Haiti. USCIS produced most of the requested

documents, with one exception: an internal policy memo from the Acting Director of USCIS to

the Secretary of Homeland Security allegedly discussing a temporal tweak to the designation.

The Center thus brings this suit under the Freedom of Information Act to compel release of the

memo. USCIS resists production. It argues that FOIA’s Exemption 5 protects the memo from

disclosure. And it claims that releasing the document would foreseeably harm the interests

protected by that exemption.

The Court agrees. The memo represents a recommendary proposal from a subordinate to

a supervisor about a policy decision still in the works. And despite the Center’s arguments to the

contrary, there is no indication the Secretary agreed with or endorsed the reasoning contained in

it. Such documents fall squarely within Exemption 5. More, the agency has satisfied its burden

to demonstrate that release would harm an interest protected by the exemption— that release would chill candid speech about sensitive issues of foreign policy. Finally, the Court is satisfied

that the agency has already released all nonsegregable portions of the memo to the Center.

USCIS is thus entitled to summary judgment.

I.

This FOIA dispute centers on Haitian immigration policy. On May 22, 2021, the

Department of Homeland Security issued a press release announcing a new designation of Haiti

for Temporary Protected Status (“TPS”). Pl. Cross-Mot. Summ. J., ECF No. 31, at 1. According

to the press release, the Secretary established the TPS designation because there were

“extraordinary and temporary conditions in Haiti that prevent nationals from returning safely.”

Id. These included “human rights abuses,” “serious security concerns,” and “the COVID-19

pandemic’s exacerbation of a dire economic situation and lack of access to food, water, and

healthcare.” Id. The TPS Designation included a specific cutoff date for eligibility, known as

the “continuous residence date.” Id. The press release specified “that TPS will apply only to

those individuals who are already residing in the United States as of May 21, 2021.” Id. So

those who traveled to the United States from Haiti after the press release supposedly were not

eligible. Id.

The TPS designation was finalized in the Federal Register on August 3, 2021. Id. But

with a small tweak—the continuous residence date had been extended to July 29, 2021. Id. The

Federal Register Notice does not explain the change. See generally Fed. Register Notice, ECF

No. 35-2. This case stems from that unexpected edit.

The Center submitted a FOIA request seeking records related to the press release and

the subsequent Federal Register Notice. Compl., ECF No. 1, ¶ 6. Displeased with the resulting

production by USCIS, it brought this suit under FOIA, arguing that USCIS failed to adequately

2 conduct a search for responsive records and wrongfully withheld nonexempt responsive records. 1

Compl. ¶¶ 14–23. Years of production and squabbles ensued. But the parties winnowed down

their disputes to one remaining challenge. Def. Mot. Summ. J., ECF No. 29, at 1–2.

The final disagreement concerns a single, three-page document sent from USCIS Acting

Director Tracy L. Renaud to the Secretary on July 27, 2021. Decl. J. Panter, ECF No. 29-1, ¶ 11.

The memo has been largely redacted, but it still shows the sender, recipient, and date. CRD

Mem., ECF No. 29-2. It bears the subject line “Modification of Continuous Residence Date for

Temporary Protected Status for Haiti.” Id. And it provides four dispositions to the Secretary,

one of which he can choose to endorse by signature: “Approve,” “Disapprove,” “Modify,” or

“Needs discussion.” Id. Otherwise, only the headings remain: “Purpose,” “Background,” and

“Recommendation.” Id. Everything else has been redacted.

USCIS moves for summary judgment. Def. Mot. Summ. J. at 5. It argues the redactions

are justified by FOIA Exemption 5, as they “consist of pre-decisional, intra-agency, deliberative

recommendations to the Secretary of Homeland Security about a potential change in a particular

aspect of foreign policy.” Id. (cleaned up). The Center cross-moves for summary judgment. Pl.

Cross-Mot. Summ. J. at 2. It argues that “Exemption 5’s deliberative process privilege does not

protect policy determinations and justifications that have been adopted, formally or informally,”

by the agency. Id. And it insists that USCIS’s “justifications for withholding the substantive

contents of the Modification Memo fall far below what is required to meet the agency’s burden

to support its withholdings.” Id.

1 The original suit included the DHS as a defendant, but the Center voluntarily dismissed all claims against it. Voluntary Dismissal, ECF No. 10.

3 The Court requested an unredacted version of the document so it could perform in

camera review. Minute Order 1/15/2025. Having done so, it is now set to rule on the cross-

motions for summary judgment.

II.

Courts can typically resolve FOIA cases on summary judgment. See Brayton v. Off. of

U.S. Trade Rep.,

(D.C. Cir. 2011). Summary judgment is appropriate when

the moving party shows “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). Agencies moving for summary

judgment in FOIA cases must show that the contested records “are exempt from disclosure under

FOIA.” Shapiro v. U.S. Dep’t of Just.,

(D.C. Cir. 2018) (cleaned up).

Agencies usually rely on declarations that “describe[] the justifications for withholding the

information with specific detail, demonstrate[] that the information withheld logically falls

within the claimed exemption, and [are] not contradicted by contrary evidence in the record or by

evidence of the agency’s bad faith.”

This burden remains with the agency even if a plaintiff

cross-moves for summary judgment. Pub. Citizen Health Rsch. Grp. v. Food & Drug Admin.,

(D.C. Cir. 1999).

Even if an exemption applies, the records must still be released unless the agency shows

that release would cause “reasonably foreseeable harm to an interest that the exemption

protects.” Leopold v. Dep’t of Just.,

(D.C. Cir. 2024). The agency “must provide

a focused and concrete demonstration of why disclosure of the particular type of material at issue

will, in the specific context of the agency action at issue, actually impede the interests protected

by a FOIA exemption.”

(cleaned up).

4 More, an agency must release any segregable portions of a record that is otherwise

exempt, typically by proceeding “line-by-line.” Porup v. CIA,

(D.C. Cir.

2021). Still, segregability is more of an art than a science. Otherwise releasable material may be

withheld if it is “inextricably intertwined with exempt portions.” Mead Data Cent., Inc. v. U.S.

Dep’t of Air Force,

(D.C. Cir. 1977).

III.

The memorandum is exempt from disclosure under Exemption 5. And USCIS has shown

that releasing the document would cause foreseeable harm. Finally, all nonsegregable material

has already been released to the Center. So USCIS is entitled to summary judgment.

Exemption 5 to FOIA exempts from disclosure “inter-agency or intra-agency

memorandums or letters that would not be available by law to a party other than an agency in

litigation with the agency.”

(b)(5). This provision “incorporates the privileges

available to Government agencies in civil litigation,” including, as relevant here, “the

deliberative process privilege.” U.S. Fish & Wildlife Serv. v. Sierra Club, Inc.,

,

267 (2021). That privilege recognizes the need for candor in the brainstorming stages by

protecting “recommendations and deliberations comprising part of a process by which

governmental decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co.,

(1975) (cleaned up). By shielding agency spitballing from disclosure, bureaucrats are

not haunted by the looming specter of a headline publicizing their half-baked ideas. So

discussion is richer, and, hopefully, the ultimate decisions are better.

To determine whether Exemption 5 applies, courts ask whether a document is

“predecisional” and “deliberative.” Sierra Club, 592 U.S. at 268. “Documents are predecisional

if they were generated before the agency’s final decision on the matter.” Id. (cleaned up). And

5 “they are deliberative if they were prepared to help the agency formulate its position,” id.

(cleaned up), or if they “reflect[] the give-and-take of the consultative process,” Coastal States

Gas Corp. v. Dep’t of Energy,

(D.C. Cir. 1980).

The Center does not really dispute that, at one point, the memo was predecisional and

deliberative. Pl. Cross-Mot. Summ. J. at 10. Nor could it—the memo was a proposal from the

USCIS Acting Director, whose division lacked final authority over the continuous residence

date, to the Secretary, who had the final say over that question, to make a prospective change to

the Haiti TPS policy. Decl. J. Panter ¶ 16. The advisory nature of the document is underscored

by the blank section at the bottom of the memo permitting the Secretary to signal his potential

disapproval or to offer instructions to modify the proposal. CRD Mem. at 3. And

“recommendations from subordinates to superiors lie at the core of the deliberative-process

privilege.” Machado Amadis v. U.S. Dep’t of State,

, 370 (D.C. Cir. 2020).

Conceding that the privilege applied at one point, the Center insists that “circumstances

exist which force [the memo’s] contents outside the protection of Exemption 5’s deliberative

process privilege.” Pl. Cross-Mot. Summ. J. at 10. It claims that the memo was “adopted,

formally or informally,” as the agency’s final position on the continuous residence date when it

was signed by the Secretary. Pl. Cross-Mot. Summ. J. at 11. As a result, the Center argues the

memo lost protection under the deliberative process privilege.

To be clear, the version of the

document disclosable under the Center’s request does not bear the Secretary’s signature.

Still, the Court credits the Center’s argument that the memo was ultimately signed on the

“Approval” line by the Secretary. The emails strongly suggest as much. See Pl. Ex. 6, ECF No.

31-9, at 4 (email from executive secretary of DHS attaching Hati documents and noting “[p]lease

see [Secretary] signed documents attached”). Sure, perhaps the Secretary signed the memo on

6 one of the signature fields that did not indicate his approval—such as “Disapprove,” “Modify,”

or “Needs discussion.” CRD Mem. at 3. But the subject line of the executive secretary’s email

was “RE: For [Secretary] decision/approval/e-signature – USCIS TPS Haiti Notice.” Pl. Ex. 6 at

3 (emphasis added). And it makes little sense for the executive secretary to simply remark “Let

us know if there is anything further you need!” while attaching the signed memo if there was

something more the Secretary was seeking from USCIS.

. So the Court assumes that the

Secretary ultimately endorsed the memo on the line indicating his approval. Cf. Greenspan v.

Bd. of Gov’nrs of Fed. Reserve Sys.,

, 185 (D.D.C. 2022) (explaining agency

bears the burden of showing no genuine dispute as to any material fact).

But still, the Center’s argument falters. True, “even if [a] 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 used by the agency in its dealings with the public.” Coastal States,

. But “[t]o adopt a deliberative document, it is not enough for an agency to make

vague or equivocal statements implying that a position presented in a deliberative document has

merit; instead, the agency must make an express choice to use a deliberative document as a

source of agency guidance.” Jud. Watch, Inc. v. U.S. Dep’t of Def.,

(D.C. Cir.

2017) (cleaned up).

A manager’s signed approval below a recommendation is not an express adoption. That

is the clear teaching of Abtew v. U.S. Department of Homeland Security,

(D.C.

Cir. 2015) (Kavanaugh, J.). There, the court rejected the plaintiff’s argument that a

decisionmaker’s initialing of a document was an express adoption.

While the Circuit

acknowledged that “[i]nitialing a memo may suggest approval of the memo’s bottom-line

recommendation,” it stressed that it would nonetheless “be wrong and misleading to think that

7 initialing necessarily indicates adoption or approval of all of the memo’s reasoning.”

Thus

the court concluded that “initialing alone” could not “transform” a predecisional document into

an agency’s “final decision.”

So too here. The Center has offered no evidence beyond a bare signature to indicate that

the Secretary endorsed the memo’s rationale. Under Abtew, that is insufficient. The Secretary’s

signature did not strip the memo of its predecisional character. Cf. Nat’l Council of La Raza v.

Dep’t of Just.,

, 358–59 (2d Cir. 2005) (finding express adoption where the agency

“publicly and repeatedly depended” on the underlying document “as the primary legal authority

justifying and driving” a policy change, and “[t]he record ma[de] clear that the [agency]

embraced the [document’s] reasoning as its own.”).

Nor does it matter that the agency ultimately changed the continuous residence date, as

likely suggested by the memo. Merely “carr[ying] out the recommended decision” does not

mean “that the memorand[um] accurately reflected the decisionmaker’s thinking.” Afshar v.

Dep’t of State,

, 1143 n.22 (D.C. Cir. 1983); accord Jud. Watch, Inc.,

(“The Secretary might have relied on the memo’s reasoning in deciding to take the action it

recommended, but it is also possible that he did not.”). Instead, there must be concrete evidence

that the policymaker relied on a document’s analysis and incorporated it by reference into his

final decision. See Nat’l Council of La Raza, 411 F.3d at 358. A court “may not infer that the

agency is relying on the reasoning contained in [a] subordinate’s report” where the

decisionmaker, “having reviewed [the] subordinate’s non-binding recommendation, makes a

‘yes’ or ‘no’ determination without providing any reasoning at all.” Id. at 359; see also

Machado Amadis, 971 F.3d at 370 (“[A] recommendation does not lose its predecisional or

deliberative character simply because a final decisionmaker later follows or rejects it without

8 comment. To the contrary, the Supreme Court has held that the deliberative process privilege

protects recommendations that are approved or disapproved without explanation.”).

Yet all the Center offers here is a mere endorsement of a bottom line. Cf. Niemeier v.

Watergate Special Pros. Force,

(7th Cir. 1977) (express adoption found where

final opinion quotes predecisional document, claims consistency with its conclusions, and states

that the document is on file with the agency). Without more, the Court cannot conclude that the

memo—reasoning and all—has been adopted by DHS. Renegotiation Bd. v. Grumman Aircraft

Eng’g Corp.,

, 184–85 (1975) (“[B]ecause the evidence utterly fails to support the

conclusion that the reasoning in the reports is adopted by the Board as its reasoning, even when it

agrees with the conclusion of a report, we conclude that the reports . . . fall within Exemption

5.”). Limiting the exemption in this way “guards against confusing the issues and misleading the

public by dissemination of documents suggestions reasons and rationales for a course of actions

which were not in fact the ultimate reasons for the agency’s action.” Reps. Comm. for Freedom

of the Press v. FBI,

(D.C. Cir. 2021) (cleaned up). USCIS is entitled to the

deliberative process exemption.

The Center also argues that the memorandum lost its deliberative and predecisional

nature because it became the “working law” of the agency. Pl. Cross-Mot. Summ. J. at 8. This

theory is an ill-fitting shoe here. The “working law” of an agency is a body of “binding agency

opinions and interpretations” used by the agency “in the discharge of its regulatory duties and in

its dealing with the public.” Elec. Frontier Found. v. U.S. Dep’t of Just.,

(D.C. Cir.

2014) (cleaned up). Documents falling under the working law exception to the deliberative

process privilege are typically internal agency mandates from superiors to subordinates

clarifying the position of the agency on recurring issues and instructing staff how to apply that

9 policy to fact. See, e.g., Tax’n with Representation Fund v. IRS,

, 677–81 (D.C.

Cir. 1981). These documents are often kept on hand at an agency to be used as precedential

guides for future issues that arise. Coastal States Gas Corp.,

(Working law

memos were “straightforward explanations of agency regulations in specific factual situations”

that were “akin to a ‘resource’ opinion” and “like examples in a manual.”).

Advisory memoranda hashing out the pros and cons of an ongoing policy debate do not

serve as a body of working law. They do not “reflect[] [the agency’s] formal or informal policy

on how it carries out its responsibilities.” Pub. Citizen, Inc. v. Off. of Mgmt. & Budget,

(D.C. Cir. 2010). They are not “routinely used and relied upon by field personnel” in

performing their administrative duties. Tax Analysts v. IRS,

(D.C. Cir. 1997)

(Tax Analysts I) (cleaned up). Nor do “they simply explain and apply established policy.” Tax

Analysts v. IRS,

(D.C. Cir. 2002) (Tax Analysts II). Instead, they reflect the

“agency give-and-take of the deliberative process by which the decision itself is made.” Abtew,

(cleaned up). Thus the memo at issue is not part of the working law of USCIS.

The Center tries a different tack. It argues that USCIS has failed to meet its evidentiary

burden. It insists that USCIS’s affidavit in support of summary judgment “does not provide

sufficient evidence to prove the redacted portions of the Modification Memo are subject to the

deliberative process privilege.” Pl. Cross-Mot. Summ. J. at 13. This affidavit was submitted by

Jarrod Panter, the Acting Associate Center Director and Chief FOIA Officer in the FOIA Unit of

USCIS. Decl. J. Panter ¶ 1. The Center argues that the Panter affidavit “fails to consider

whether the policy determinations and justifications within the [memo] were adopted, formally

or informally by DHS[,] in its ultimate decision to change the continuous residence date.”

at

10 14. More, the Center insists that the affidavit cannot be relied on because it is contradicted by

other evidence in the record showing that the memo was ultimately adopted by DHS. Id. at 17.

The Court disagrees with this circuitous argument. “In ruling on summary judgment,

courts may rely on non-conclusory agency affidavits demonstrating the basis for withholding if

they are not contradicted by contrary evidence in the record or by evidence of the agency’s bad

faith.” Reps. Comm. for Freedom of the Press,

. The Panter declaration

satisfies all these conditions. First, the affidavit, combined with the redacted memorandum

itself, adequately demonstrates that the memorandum was predecisional and deliberative. See

Morley v. CIA,

(D.C. Cir. 2007) (agency affidavits, Vaughn index, and

unredacted portions of documents work “in tandem” to illuminate the privileged nature of

redacted materials). The Panter affidavit describes the memorandum as “a recommendation

related to the continuous residence date for Haitian TPS designations, from USCIS, an agency

lacking decisional authority on this matter, to the DHS Secretary, which possesses decisional

authority.” Decl. J. Panter ¶ 16. And it stresses that the memorandum “recounts the thinking

and considerations regarding a policy matter prior to DHS reaching a final decision.” Id. ¶ 17.

More, the memorandum itself reflects its advisory nature, given it is couched in terms of a

“Recommendation.” CRD Mem. at 3. Together, this evidence establishes that the memo was a

nonbinding proposal sent from a subordinate to a supervisor to aid an ongoing agency

decisionmaking process. Such documents are, of course, at the heart of the deliberative process

privilege. Sears, Roebuck, & Co., 421 U.S. at 150.

The Center’s remaining evidentiary challenge falls flat for reasons already discussed.

The affidavit is not contradicted by other evidence in the record, as the record does not establish

that DHS expressly adopted the memorandum. Again, even crediting the Center’s assertions that

11 the memo was ultimately signed by the Secretary, this does not mean the memo lost its

predecisional and deliberative character. Nor has the Center offered any evidence that the

agency has acted in bad faith. So the Court relies on the Panter declaration, in addition to the

record, in holding USCIS is entitled to summary judgment.

Because the agency has met its burden to show that the memo is entitled to the

deliberative process privilege, the Court asks whether it has shown that the memo’s release

would cause “reasonably foreseeable harm” to the interests protected by that privilege. Leopold,

. The agency has done so. It stresses that divulging the memo “would foreseeably

harm USCIS’s legitimate interest in the critical and candid give-and-take of this vital

consultative process as the agency determines how to proceed in a fraught area implicating

foreign relations.” Decl. J. Panter ¶ 28. And it contends that release would “interfere with

USCIS’s ability to make sound judgments on future sensitive foreign policy matters.” Decl. J.

Panter ¶ 28. This rationale falls squarely within the interests the exemption was designed to

protect: frank communication within the agency without fear of public reprisal. Coastal States

Gas Corp.,

. A public spotlight on highly politicized and delicate foreign policy

questions would cast a pallor over deliberations. It may tempt bureaucrats to issue politically

expedient advice rather than provide honest consultation. Uninhibited discussion is essential to

make similarly difficult judgment calls in the future. The agency has met its burden of showing

foreseeable harm.

That brings the Court to segregability. USCIS conducted two line-by-line reviews of the

memo and released what it considered to be reasonably segregable. Decl. J. Panter ¶¶ 21–22.

When an agency conducts such a line-by-line review, it is “entitled to a presumption that [it]

complied with [its] obligation” to release segregable material. Boyd v. Crim. Div. of U.S. Dep’t

12 of Just.,

(D.C. Cir. 2007). More, the Panter declaration attests that any further

disclosure “cannot be made without revealing decision-making processes which are protected by

the deliberative process privilege.” Decl. J. Panter ¶ 23. The affidavit and record weigh heavily

towards a finding that the agency has satisfied its segregability burden. Johnson v. Exec. Off. for

U.S. Att’ys,

, 776 (D.C. Cir. 2002) (“The combination of the Vaughn index and

[agency affidavits] [is] sufficient to fulfill the agency’s obligation to show with ‘reasonable

specificity’ why a document cannot be further segregated.”). The Court also conducted its own

in camera review of the memorandum, and it is satisfied that USCIS has released all reasonably

segregable portions of the document.

IV.

To sum up, the deliberative process privilege shields the memo from further release.

And the agency has met its burden to show that further disclosure would foreseeably harm

important interests protected by that privilege. Finally, the Court is satisfied that all reasonably

segregable portions of the memo have already been disclosed to the Center. USCIS is thus

entitled to summary judgment. A separate Order will issue today.

2025.02.05 14:45:35 -05'00' Dated: February 5, 2025 TREVOR N. McFADDEN, U.S.D.J.

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