FOIA Victory: NIP-NLG v. DHS

"“Trust everybody, but cut the cards,” as the old saying goes.  When the Solicitor General of the United States makes a representation to the Supreme Court, trustworthiness is presumed. Here, however, plaintiffs seek to determine whether one such representation was accurate or whether, as it seems, the Government’s lawyers were engaged in a bit of a shuffle. Specifically, in 2009, in a brief addressed to the Supreme Court, the Office of the Solicitor General ("OSG") represented that, "[b]y policy and practice, the government accords aliens who were removed pending judicial review but then prevailed before the courts effective relief by, inter alia, facilitating the aliens' return to the United States by parole under 8 U.S.C. 1182(d)(5) if necessary, and according them the status they had at the time of removal." Brief for Respondent at 44, Nken v. Holder, 129 S. Ct. 1749 (2009) (No. 08-681), 2009 WL 45980 at *44. Although the OSG did not support this assertion with any citation, id., the Supreme Court in Nken, in holding that deportation of an alien before the resolution of an appeal from her order of removal does not constitute irreparable injury, expressly relied on this representation, stating that, "those who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal. See Brief for Respondent 44." Nken, 129 S. Ct. at 1761. To discover the factual basis for the OSG’s representation and determine the details of the asserted policy, plaintiffs in this case filed a request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, with the Department of Justice ("DOJ"), Department of State ("DOS"), and Department of Homeland Security ("DHS"). In response to that request, the OSG produced a mostly-redacted four-page chain of emails between the attorneys who argued before the Supreme Court in Nken and other government officials. See Decl. of Patricia L. Buchanan dated October 28, 2011 Ex. B. The OSG sought to justify the wholesale redactions on the basis of three privileges embodied in 5 U.S.C. § 552(b)(5): the work-product privilege, the attorney-client privilege, and the deliberative-process privilege. On October 11, 2011, plaintiffs filed a motion for summary judgment, requesting that this Court order disclosure of the contents of the emails. On October 31, 2011, the Government cross moved for summary judgment, requesting that the Court uphold the assertions of privilege. Both parties consented to in camera review of the emails. Accordingly, the Court conducted such a review. Based on that review, and the parties’ submissions and arguments, the Court hereby partially grants and partially denies the motions by ordering disclosure of the portions of the emails that contain factual statements concerning the aforementioned policy and practice." - NIP-NLG v. DHS, Feb. 7, 2012.