Martins v. U.S. Citizenship & Immigration Servs.

• Decision Date: 03 July 2013
• Docket Number: No. C 13–00591 LB,C 13–00591 LB
• Citation: 962 F.Supp.2d 1106
• Court: U.S. District Court — Eastern District of California
• Parties: Jeffrey Martins, Plaintiff, v. United States Citizenship and Immigration Services, et al., Defendants.

962 F.Supp.2d 1106

Jeffrey Martins, Plaintiff,
v.
United States Citizenship and Immigration Services, et al., Defendants.

No. C 13–00591 LB

United States District Court, N.D. California.
San Francisco Division

July 3, 2013

[962 F.Supp.2d 1109]

Jeff Glasser, Thomas R. Burke, Davis Wright Tremaine LLP, 505 Montgomery Street Suite 800 San Francisco, CA 94111-6533, Robin L. Goldfaden, Lawyers' Committee For Civil Rights of the San Francisco, 131 Steuart Street Suite 400 San Francisco, CA 94105, for Plaintiff.

Abraham A. Simmons, U.S. Attorney's Office, 450 Golden Gate Avenue P.O. Box 36055 San Francisco, CA 94102, for Defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION [Re: ECF No. 17]
LAUREL BEELER, United States Magistrate Judge.
INTRODUCTION

Plaintiff Jeffrey Martins, an immigration attorney who represents persons seeking asylum in the United States, brought claims against the United States Citizenship and Immigration Services (“USCIS”), Alejandro Mayorkas in his official capacity as Director of the USCIS, the United States Department of Homeland Security (“DHS”), and Janet Napolitano, in her official capacity as Secretary of DHS (collectively, “Defendants”), under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., to receive, pursuant to his FOIA requests, the “interview notes” taken by Asylum Officers when they interviewed his clients. See generally Complaint, ECF No. 1.¹ These interview notes, which are

[962 F.Supp.2d 1110]

kept in his clients' “Alien Files” (“A–Files”), are being withheld by Defendants on the ground that they are protected by the deliberative process privilege and therefore are covered by Exemption 5 of FOIA, 5 U.S.C. § 552(b)(5). See id. ¶ 5. Mr. Martins moves for a preliminary injunction enjoining Defendants from asserting Exemption 5 and requiring them to promptly produce the interview notes so that Mr. Martins can use them to prepare for his clients' upcoming removal hearings. Motion, ECF No. 17. Defendants oppose the motion.² Opposition, ECF No. 20. Upon consideration of the record in the case and the arguments of counsel at the July 3, 2013 hearing, the court GRANTS Mr. Martins's motion and orders the expedited Vaughn index described below.

STATEMENT I. THE ASYLUM PROCESS

The following description of the asylum process is taken from the allegations in Mr. Martins's complaint and the evidence he submitted in support of his motion for a preliminary injunction.

Asylum is a form of protection for persons who have suffered persecution or have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Complaint, ECF No. 1 ¶ 16. A grant of asylum gives the individual legal immigration status in the United States. Id. A person who is not in removal proceedings may apply for asylum affirmatively, and one who is in removal proceedings may apply as a defense to removal. Id. ¶ 17; Martins Declaration, ECF No. 17 ¶ 9. Affirmative asylum seekers commence the application process by mailing a completed Form 1–589 to one of four USCIS Service Centers. Complaint, ECF No. 1 ¶ 17; Martins Declaration, ECF No. 17 ¶ 9. The application then is forwarded to the USCIS Asylum Office that has jurisdiction over the case, and the applicant is scheduled to appear for an interview before an Asylum Officer. Complaint, ECF No. 1 ¶ 17; Martins Declaration, ECF No. 17 ¶ 9.

An asylum applicant may appear for the interview on his or her own. Complaint, ECF No. 1 ¶ 18; Martins Declaration, ECF No. 17 ¶ 10. Alternatively, at his or her own expense, an applicant may be represented in applying for asylum, including at the interview before the Asylum Officer. Complaint, ECF No. 1 ¶ 18; Martins Declaration, ECF No. 17 ¶ 10. The applicant is responsible for bringing an interpreter to the interview if one is needed. Complaint, ECF No. 1 ¶ 18; Martins Declaration, ECF No. 17 ¶ 10. At the interview, the Asylum Officer reviews the application with the applicant and questions the applicant under oath. Complaint, ECF No. 1 ¶ 19; Martins Declaration, ECF No. 17 ¶ 11. As a general matter, questions are used to elicit information bearing on the applicant's eligibility for asylum. Complaint, ECF No. 1 ¶ 19; Martins Declaration, ECF No. 17 ¶ 11.

[962 F.Supp.2d 1111]

Some matters must be explored with every applicant—factors related to the elements of the refugee definition, those related to mandatory bars and bases for discretionary denials, the applicant's current immigration status, and factors that relate to the one-year filing deadline. Complaint, ECF No. 1 ¶ 19; Martins Declaration, ECF No. 17 ¶ 11. Some questions will be essentially the same from applicant to applicant, such as whether the person has persecuted others or previously applied for asylum, while other questions probe the particular facts underlying the individual applicant's claim for asylum. Complaint, ECF No. 1 ¶ 19; Martins Declaration, ECF No. 17 ¶ 11. While conducting the interview, the Asylum Officer seeks to determine if the applicant is credible. Complaint, ECF No. 1 ¶ 19; Martins Declaration, ECF No. 17 ¶ 11.

Asylum interviews are not recorded. Complaint, ECF No. 1 ¶ 20; Martins Declaration, ECF No. 17 ¶ 13. The interviewing Asylum Officer is responsible for taking notes that document the interview. Complaint, ECF No. 1 ¶ 20; Martins Declaration, ECF No. 17 ¶ 13. If present, an attorney for the applicant may also take notes and retain his or her own notes. Complaint, ECF No. 1 ¶ 20; Martins Declaration, ECF No. 17 ¶ 13. An interpreter may also take notes in order to help him or her provide accurate interpretation, but these notes normally are confiscated at the end of the interview. Complaint, ECF No. 1 ¶ 20; Martins Declaration, ECF No. 17 ¶ 13.

Asylum Officers receive training and direction about how they are to take notes of asylum interviews. Complaint, ECF No. ¶ 21; Burke Declaration, ECF No. 19 ¶ 3, Exh. A (overview of USCIS Asylum Division Training Programs, from USCIS webpage). The USCIS Asylum Division's Training Section provides training on a national level and on a local level in the field offices. Complaint, ECF No. ¶ 2 1; Burke Declaration, ECF No. 19 ¶ 3, Exh. A. All Asylum Officers are required to attend and complete the Asylum Officer Basic Training Course (“AOBTC”), which is a national training course that is specific to asylum adjudications. Complaint, ECF No. ¶ 21; Burke Declaration, ECF No. 19 ¶ 3, Exh. A. One of the AOBTC lesson modules specifically addresses “Note–Taking” by interviewing Asylum Officers. Complaint, ECF No. 1 ¶ 22, Exh. A (“Interview Part 2: Note–Taking” lesson module); Burke Declaration, ECF No. 19 ¶ 4, Exh. B (same). The Note–Taking lesson module provides an overview of the purpose of the notes taken by the interviewing Asylum Officer, and it details the requirements and characteristics of “proper note-taking.” Complaint, ECF No. 1 ¶ 23, Exh. A; Burke Declaration, ECF No. 19 ¶ 4, Exh. B. The lesson module explains:

It is essential for asylum officers to take clearly written and comprehensive notes during the interview. Interview notes must accurately reflect what transpired during the interview so that a reviewer can reconstruct the interview by reading the interview notes. In addition, the interview notes should substantiate the asylum officer's decision.

Complaint, ECF No. 1 ¶ 23, Exh. A at 25; Burke Declaration, ECF No. 19, Exh. B at 4.

While it is recognized that mistakes will occur, interviewing Asylum Officers are charged with taking notes that are clear, accurate, detailed, and objective. Complaint ¶ 24, Exh. A; Burke Declaration, ECF No. 19, Exh. B. The lesson module repeatedly emphasizes that “[a] reviewer should be able to reconstruct what transpired during the interview by reading the interview notes.” Complaint, ECF No. 1 ¶ 24, Exh. A at 25, 27, 32; Burke Declaration, ECF No. 19, Exh. B at 4, 6, 11. The Officers are not required to transcribe every word that is spoken during the interview,

[962 F.Supp.2d 1112]

but they are instructed that their notes should accurately reflect what the Officer asks and what the applicant says and further that there can be instances when having the notes include every word is essential to capture the meaning of what the applicant has said. Complaint, ECF No. 1 ¶ 24, Exh. A at 26–29; Burke Declaration, ECF No. 19, Exh. B at 5–8. When appropriate, the Asylum Officer is also to note what an applicant does not say, such as when the applicant is not able to answer a question. Complaint, ECF No. 1 ¶ 24, Exh. A at 29; Burke Declaration, ECF No. 19, Exh. B at 8. While documenting the content of the interview, the Officer's notes must not include his or her subjective opinions, suppositions, or personal inferences. Complaint, ECF No. 1 ¶ 25, Exh. A at 27–28; Burke Declaration, ECF No. 19, Exh. B at 6–7. The note-taking lesson module states:

Asylum officers should take care that their notes will be perceived by others as an accurate and objective record of the interview. For example, even an exclamation point placed in reaction to a portion of the applicant's testimony may appear as a judgment of the applicant's claim.

Complaint, ECF No. 1 ¶ 25, Exh. A at 27–28; Burke Declaration, ECF No. 19, Exh. B at 6–7.

After the interview, separate and apart from the notes themselves, the Asylum Officer is responsible for completing an assessment of the asylum applicant's claim. Complaint, ECF No. 1 ¶ 26; Burke Declaration, ECF No. 19 ¶ 5, Exh. C (“Decision Writing Part I: Overview and Components, Focusing on 1st Three Components” lesson module on writing assessments and Notices of Intent to Deny). The assessment provides the Officer's evaluation of the applicant's claim. Complaint, ECF No. 1 ¶ 26; Burke Declaration, ECF No. 19 ¶ 5, Exh. C. A supervisor reviews all of the evidence and the interviewing Officer's...