Positive Decision on Segregability in FOIA Cases from D.D.C.

Rachel C. Zoghlin writes:

"On July 30, 2015, after over two years of litigation, Judge John D. Bates of the U.S. District Court for the District of Columbia issued a highly-anticipated decision in the companion FOIA cases Mezerhane Gosen v. USCIS and Mezerhane de Schnapp v. USCIS. Nos. 13-1091, 13-1461 (D.D.C., July 30, 2015). In evaluating whether records withheld under FOIA Exemption 5 are “pre-decisional,” the decision provides valuable insight as to the asylum adjudication process, including when and how USCIS makes decisions in affirmative asylum filings. Despite that the agency is afforded “considerable deference” in its determinations of what information is properly exempt under the FOIA, the Court acknowledged that “there is at least some factual material [withheld under Exemption 5] that may not dispose the deliberative process.” The Court required USCIS to “re-assess the remaining pages in dispute . . . and disclose all reasonably segregable portions of non-exempt material.” Attorneys Sandra Grossman and Rachel Zoghlin of Grossman Law, LLC represent the Plaintiffs.

Plaintiff Nelson Mezerhane Gosen (“Mr. Mezerhane”) co-founded and co-owned Venezuela’s last independent television station, and quickly became an enemy of the Chavez/Maduro regime by refusing to silence the channel’s critical line. The entire Mezerhane family, including Mr. Mezerhane’s wife, his four adult children (one of whom is Mrs. Maria Andrea Mezerhane de Schnapp) and three children in-law, and six grandchildren, fled to the United States in August 2010 and immediately applied for asylum before USCIS. The family’s asylum applications remained pending for over three years, despite numerous efforts by members of Congress and inquiries by the family’s attorneys. On March 29, 2013, Mr. Mezerhane, through counsel, filed a FOIA request to USCIS to obtain his complete A file with hopes of discerning the cause for the lengthy delay in the processing of his case. A few weeks later, on May 6, 2013, USCIS provided Mr. Mezerhane with 690 pages of responsive records. USCIS released 498 pages in their entirety, 84 pages in part, and withheld 55 pages in full. Within the partially released documents, USCIS issued several pages noting that, as of September 21, 2010, Plaintiff’s case was described as “CURRENT STATUS: ASYLUM GRANTED” and “FINAL DECISION: ASYLUM GRANTED.” Mr. Mezerhane administratively appealed USCIS’ FOIA withholdings on May 10, 2013, to which USCIS responded on June 28, 2013 by releasing four additional heavily-redacted pages.

With the assistance of his attorneys, Sandra Grossman and Rachel Zoghlin of Grossman Law, LLC, Mr. Mezerhane filed suit in the U.S. District Court for the District of Columbia on July 16, 2013, challenging USCIS’ numerous withholdings and redactions. Over the course of the over two-year litigation, Mr. Mezerhane argued that records withheld under Exemption 5 originating after September 21, 2010 (when his case was internally recorded as “Current Status: Asylum Granted” and “Final Decision: Asylum Granted”) were not properly exempt because they were inherently post-decisional. Mr. Mezerhane also provided evidence of numerous “curious encounters” with DHS officials who also believed that USCIS had granted asylum in September 2010. In response, Defendant USCIS filed numerous affidavits of agency experts explaining the asylum adjudication process, including when and how a decision is made. Judge Bates conducted a thorough in camera review and ultimately found that the internal agency markings “Current Status: Asylum Granted” and “Final Decision: Asylum Granted” were merely clerical errors, rather than reflections of the timing of the agency’s final decision. Nonetheless, Judge Bates confirmed that the withheld records contained “at least some factual material” that is not necessarily exempt under FOIA Exemption 5. Judge Bates ordered USCIS to re-assess whether the withholdings were truly deliberative, and if not, to disclose the withheld material to the Plaintiffs."  [Hats off to Rachel Zoghlin and Sandra Grossman!]