Case 2:17-cv-00094-RAJ Document 119 Filed 02/20/18 Page 1 of 16 1 The Honorable Richard A. Jones 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 ABDIQAFAR WAGAFE, et al., Plaintiffs, 11 12 v. 13 DONALD TRUMP, President of the United 14 States, et al., 15 No. 2:17-cv-00094-RAJ DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL RE LAW ENFORCEMENT PRIVILEGE Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 RESPONSE IN OPPOSITION TO MOTION TO COMPEL - 1 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 119 Filed 02/20/18 Page 2 of 16 1 I. 2 INTRODUCTION Defendants have properly claimed the law enforcement privilege and have provided the 3 required level of detail in their privilege logs to document their claim of privilege. Plaintiffs have 4 incompletely represented the contents of Defendants’ privilege logs and misstated the 5 requirements for both the contents of a privilege log and a claim of privilege. First, Defendants’ 6 production of documents thus far primarily includes documents that refer or relate to the 7 Controlled Application Review and Resolution Program (“CARRP”) or the background check 8 process conducted by U.S. Citizenship and Immigration Services (“USCIS”) when adjudicating 9 immigration benefit applications. Thus, it is intuitive and unsurprising that many of the entries on 10 the privilege log would be similar given that the nature of the privileged information is similar. 11 Second, there is no requirement that a governmental entity must identify on a privilege log the 12 government official who, after a proper challenge, would later make a formal assertion of 13 privilege before a court. And there is no requirement that a governmental entity must provide an 14 affidavit formally asserting a privilege prior to a proper challenge in a motion to compel. Indeed, 15 to require otherwise would create an entirely unworkable system, severely crippling the ability of 16 senior level agency leadership to do their jobs, and rendering them as mere cogs in a civil 17 discovery machine. Therefore, the Court should deny Plaintiffs’ motion to compel. 18 II. 19 PROCEDURAL BACKGROUND Defendants have produced five volumes of documents in this case: Defendant USCIS 20 Volume 001 on October 6, 2017, Defendant USCIS Volume 002 and 003 (on October 30, 2017), 21 Defendant USCIS Volume 004 on November 22, 2017, and Defendant USCIS Volume 005 on 22 February 12, 2018. Decl. of Joseph F. Carilli, Jr. (Feb. 20, 2018) ¶ 3, Exs. A – D (attached hereto 23 as Ex. 1). After each production, Defendants timely produced privilege logs on October 30, 2017 24 (Defendant USCIS Volume 001), November 3, 2017 (Defendant USCIS Volume 002), 25 November 6, 2017 (Defendant USCIS Volume 003), and November 28, 2017 (Defendant USCIS 26 Volume 004). 1 Id. ¶ 4. 27 28 1 Defendant USCIS Volume 005, made February 12, 2018, is not at issue in this motion. Defendants have not yet produced the privilege log for that production. RESPONSE IN OPPOSITION TO MOTION TO COMPEL - 2 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 119 Filed 02/20/18 Page 3 of 16 1 On January 19 and 26, 2018, via telephone conferences, Plaintiffs challenged 2 Defendants’ claim of privilege. Id. ¶ 5. During the meet-and-confer, Defendants asked Plaintiffs 3 to identify the specific documents for which Plaintiffs were challenging the claim of privilege. 4 Id. Plaintiffs declined to do so; indeed to date, Plaintiffs have not identified any specific 5 documents to which their privilege challenge applies. Id. Subsequent to the meet-and-confer, on 6 January 31, 2018, Defendants produced revised privilege logs to further document and clarify the 7 nature of Defendants’ privilege claims. Id.; Decl. of David Perez, Exs. 1 – 5, ECF No. 110. 8 III. 9 LEGAL STANDARD A. Privilege Logs 10 Federal Rule of Civil Procedure 26(b)(5) requires that a privilege log “describe the nature 11 of the documents, communications, or tangible things not produced or disclosed—and do so in a 12 manner that, without revealing information itself privileged or protected, will enable other parties 13 to assess the claim.” FED. R. CIV. P. 26(b)(5); see Alliance v. Whitley Manufacturing Co., No. 13- 14 cv-1690, 2015 WL 13567493 (W.D. Wash. Nov. 9, 2015) (“At a minimum, the privilege log 15 must identify the nature of the redacted or withheld information, its date, the parties thereto (and 16 their connection to this litigation, if relevant), the privilege that justifies the failure to disclose, 17 and any other information necessary to show that the privilege applies.”). 18 B. Law Enforcement Privilege 19 The law enforcement privilege protects from dissemination information contained in both 20 criminal and civil investigatory files. See Friedman v. Bache Halsey Stuart Shields, Inc., 738 21 F.2d 1136, 1341 (D.C. Cir. 1984); United States v. McGraw-Hill Cos. Inc., No. 13-cv-779, 2014 22 WL 1647385, *6 (C.D. Cal. Apr. 15, 2014). The privilege acknowledges the strong public 23 interest in safeguarding the integrity of investigations, In re Sealed Case, 856 F.2d 268, 272 24 (D.C. Cir. 1988), and it may be invoked to protect the ongoing or future effectiveness of 25 investigatory techniques, Shah v. Dep’t of Justice, 89 F. Supp. 3d 1074, 1080 (D. Nev. 2015). 26 “The purpose of this privilege is to prevent disclosure of law enforcement techniques and 27 procedures, to preserve the confidentiality of sources, to protect witness and law enforcement 28 personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to RESPONSE IN OPPOSITION TO MOTION TO COMPEL - 3 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 119 Filed 02/20/18 Page 4 of 16 1 prevent interference with an investigation.” State Comp. Ins. Fund v. Drobot, No. 13-cv-0956, 2 2016 WL 3546583, at *5 (C.D. Cal. Feb. 29, 2016). 3 IV. 4 ARGUMENT A. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Privilege Logs Meet the Requirements Under Federal Rule of Civil Procedure 26(b)(5) Defendants’ privilege logs comply with Federal Rule of Civil Procedure 26(b)(5). Under Rule 26(b)(5), a privilege log must “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” FED. R. CIV. P. 26(b)(5); see also Alliance, 2015 WL 13567493. Defendants’ privilege logs contain all of that information, and more. Specifically, Defendants’ initial and revised privilege logs contain the following data columns: (1) Begin Bates number; (2) End Bates number; (3) Date/Time Sent (E-mail) / Date (Document); (4) To (E-mail); (5) From (E-Mail) / Author (Document); (6) CC (E-mail); (7) BCC (E-mail); (8) Document Title; (9) Date/Time Created; (10) Privilege; and (11) Privilege Description. See, e.g., Ex. 1, Perez Decl., ECF No. 110. Central to the dispute are the entries in column 11, entitled “Privilege Description.” An example entry in column 11 for the following document “USCIS PM-602-XXXX CARRP,” for which both the deliberative process privilege and the law enforcement privilege are asserted, is: Draft CARRP policy document, which was not adopted by the agency, that was intended to rescind, update, and consolidate all USCIS CARRP policy documents; Deliberative, pre-decisional comments shared between agency officials about a revised, draft CARRP policy document that was intended to rescind, update, and consolidate all USCIS CARRP policy documents; Document contains information that identifies internal case handling procedures on the adjudication on an immigration benefit application, to include criteria used to evaluate an applicant’s eligibility for the immigration benefit, which might reveal the bases used to determine eligibility by agency officials, and if disclosed will risk circumvention or evasion of the law; Document contains information about the types of law enforcement checks, to include the information contained in the law enforcement check, performed on an applicant for an immigration benefit which might reveal sensitive internal law enforcement case handling procedures and if disclosed will risk circumvention or evasion of the law. Id. This detailed entry is sufficient to “enable [Plaintiffs] to assess the claim.” FED. R. CIV. P. 26(b)(5). RESPONSE IN OPPOSITION TO MOTION TO COMPEL - 4 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 119 Filed 02/20/18 Page 5 of 16 1 Despite the detailed nature of Defendants’ “privilege descriptions,” Plaintiffs claim that 2 the privilege logs are deficient because they believe that “Defendants must submit a proper 3 privilege log with narratives that identify the head of the department invoking the privilege.” 4 Plaintiffs’ Motion to Compel Re Law Enforcement Privilege, at 12, ECF No. 109. Defendants 5 are mistaken; simply put, there is no such requirement. See Club Level, Inc. v. City of Wenatchee, 6 618 F. App’x 316 (9th Cir. 2015) (listing the general information needed for each document in a 7 privilege log without mentioning the head of the department invoking the privilege). 8 9 Plaintiffs appear to argue that Defendants must submit an affidavit when making a claim of privilege on a privilege log. The requirement for an affidavit, however, only arises after a 10 challenge before a court. See infra ¶ III.B. The burden Plaintiffs advance presents an unworkable 11 standard that would render senior government officials into mere functionaries of the civil 12 discovery process. See Fed. Housing Fin. Agency v. JPMorgan Chase & Co., 978 F. Supp. 2d 13 267, 279 (S.D.N.Y. 2013) (finding that party’s contention that a certification must be included 14 with a privilege log “is incongruent with the real-world practicalities of agency governance”). 15 Plaintiffs’ suggestion that the privilege logs are insufficient because they contain “largely 16 the same boilerplate language for all these documents—even those that are clearly very different 17 in nature” is inaccurate, and their argument is without merit. ECF No. 109 at 8. As a threshold 18 matter, it is important to note that the information withheld in the documents produced to date 19 has come from two primary sources: (1) USCIS policy and operational guidance on the CARRP; 20 and/or (2) USCIS guidance on background checks conducted in order to adjudicate an 21 immigration benefit application. See Perez Decl., Exs. 1 – 4, ECF No. 110; infra. Given the 22 similarities of many of the documents produced, it is entirely unremarkable—and indeed to be 23 expected—that the nature of the privileged information, and therefore the descriptions in the 24 privilege logs, would be the same or similar. 25 Moreover, Plaintiffs fail to point out or acknowledge that, on the privilege logs for 26 Defendant USCIS Volume 001 and 003, several of the entries they suggest are improper are 27 actually (a) entries for multiple drafts of the same document, see Perez Decl., Exs. 1, 3, ECF No. 28 RESPONSE IN OPPOSITION TO MOTION TO COMPEL - 5 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 119 Filed 02/20/18 Page 6 of 16 1 110, 2 (b) entries for multiple versions or portions of the same document, see, id., 3 or (c) entries 2 related to the same working group, see id. 4 These overlapping and closely related entries account 3 for 176 of the 259 entries wherein Defendants claim the law enforcement privilege. 4 Additionally, many of the near identical entries on one privilege log are identical for a 5 reason—they are all part of one original record—a single CARRP independent study course. See 6 id., Ex. 2. Defendants specifically informed Plaintiffs of this fact when producing the 7 documents. See Carilli Decl., Ex. C, (letter to Plaintiffs’ counsel stating “Production Volume 8 Defendant USCIS 002 are documents associated with a [USCIS CARRP] independent study 9 course. . . [which was originally an] Adobe Dreamweaver file.”). The description of privilege is 10 the same for all of the documents because the documents are all part of the same original file and 11 were merely disaggregated for production. 12 Overall, Defendants have taken great care to ensure that their privilege logs not only meet 13 the minimum standards, but that they include greater detail than required, listing a separate entry 14 for each document as opposed to listing categories of the documents. 5 See FED. R. CIV. P. 15 26(b)(5) advisory committee note to 1993 amendments (“[d]etails concerning time, person, 16 general subject matter, etc., may be appropriate if only a few items are withheld, but may be 17 unduly burdensome when voluminous documents are claimed to be privileged or protected, 18 particularly if the items can be described by categories.”); Phillips v. C.R. Bard, Inc., 290 F.R.D. 19 615 (D. Nev. 2013) (permitting a categorical privilege log); In re Imperial Corp. of Am., 174 20 F.R.D. 475, 479 (C.D. Cal. 1997) (finding that “Fed. R. Civ. Pro. 26(b)(5) does not require the 21 production of a document-by-document privilege log.”). In light of the specific categories and 22 23 24 25 26 27 28 2 Listing 35 entries for USCIS PM-602-XXXX CARRP; 15 entries for USCIS Operational Guidance, National Guidance on the CARRP; 4 entries for USCIS PM-602-XXXX, Implementation of Final TECS Check Before Granting Lawful Permanent Resident Status or Administering the Oath of Allegiance to Approved Naturalization Applicants; 3 entries for USCIS PM-602-XXXX, Updated Instructions for Handling TECS B10 Hits. 3 Listing 50 entries for certain portions and versions of the NaBISCOP. 4 Listing 41 entries for the CARRP working group meeting minutes and notes; 28 entries for the NaBISCOP Advisory Panel meeting minutes. 5 Defendants reserve the right to list categories of documents on future privilege logs. RESPONSE IN OPPOSITION TO MOTION TO COMPEL - 6 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 119 Filed 02/20/18 Page 7 of 16 1 amount of information provided to Plaintiffs in Defendants’ privilege logs, this Court should 2 reject Plaintiffs’ non-particularized global attack on the sufficiency of such logs. 3 4 5 B. The Information Withheld Is Privileged 1. Defendants are not required to submit a declaration from an agency head until they formally invoke the privilege. Plaintiffs’ generalized attack on the Defendants’ claim of the law enforcement privilege 6 is also based on a fundamental misunderstanding of the requirement for a declaration by the head 7 of the agency. Plaintiffs argue that “Defendants must—for each document they assert is 8 privileged—submit an affidavit or declaration from the head of the department with control over 9 the requested information.” ECF No. 109, at 6. The requirement for a declaration by the head of 10 the agency is to support a formal invocation of a privilege before a court; there is no such 11 requirement imposed at the initial stage of a claim of privilege. See, e.g., United States v. 12 Reynolds, 345 U.S. 1, 10-11 (1953) (accepting formal claim filed after order compelling 13 production was issued because, “when the formal claim of privilege was filed by the Secretary of 14 the Air Force, . . . there was certainly a sufficient showing of privilege to cut off further demand 15 for the document on the showing of necessity for its compulsion that had then been made”); In re 16 Sealed Case, 121 F.3d at 741 (holding White House had no obligation to formally invoke 17 privilege in advance of motion to compel; it was sufficient to state in response to subpoena a 18 “belie[f] the withheld documents were privileged”); Phillips, 290 F.R.D. at 615 (indicating that it 19 is not necessary for a defendant to produce an affidavit supporting the privilege for every 20 document in advance of a formal challenge to the assertion of privilege for specific documents); 21 SEC v. Downe, No. 92 Civ. 4092, 1994 WL 23141, at *5 (S.D.N.Y. Jan. 27, 1994) (holding 22 government not required to provide affidavit in support of investigative files privilege “prior to 23 formal motion practice”); see also Maria Del Socorro Quintero Perez v. United States, No. 13- 24 cv-1417, 2016 WL 362508, *3 (S.D. Cal. Jan. 29, 2016) (“Defendants failure to provide 25 Plaintiffs with a declaration in support of the law enforcement privilege at the same time they 26 provided the privilege log did not result in an automatic waiver of the privilege.”). Because there 27 is no requirement to provide an affidavit at the initial instance of claiming law enforcement 28 RESPONSE IN OPPOSITION TO MOTION TO COMPEL - 7 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 119 Filed 02/20/18 Page 8 of 16 1 privilege, Defendants’ privilege logs cannot be insufficient solely because they lack such 2 information. 6 3 4 2. Defendants now formally invoke the law enforcement privilege. The law enforcement privilege may be invoked to protect the ongoing or future 5 effectiveness of investigatory techniques. Shah, 89 F. Supp. 3d at 1080. In order to formally 6 invoke this privilege, after a formal challenge in a motion to compel, Defendants “must satisfy 7 three elements: (1) there must be a formal claim of privilege by the head of the department 8 having control over the requested information; (2) assertion of the privilege must be based on 9 actual personal consideration by that official; and (3) the information for which the privilege is 10 claimed must be specified, with an explanation as to why it properly falls within the scope of the 11 privilege.” ECF No. 98, at 3 (citing In re Sealed Case, 856 F.2d at 271). In formally invoking the 12 privilege before this Court, Defendants have satisfied those elements here. 13 First, Matthew D. Emrich is the Associate Director of the Fraud Detection and National 14 Security (“FDNS”) Directorate, USCIS, and, as such, is in charge of the FDNS Directorate, and 15 meets the definition of agency head. Emrich Aff. ¶ 1; See Landry v. FDIC, 204 F.3d 1125, 1135 16 (D.C. Cir. 2000) (allowing the head of the appropriate regional division of the FDIC’s 17 supervisory personnel to assert the deliberative process privilege, noting “it would be 18 counterproductive to read ‘head of the department’ in the narrowest possible way”). He has 19 received a formal delegation from the Director of USCIS, to invoke the law enforcement 20 privilege. Id. ¶ 3. Second, Associate Director Emrich is familiar with the documents and has 21 reviewed the documents and information withheld. Id. ¶¶ 8-10. Third, in his declaration, 22 Associate Director Emrich explains why the withheld information is within the scope of the law 23 enforcement privilege. Id. ¶ 12. Thus, all three elements of the assertion of privilege are met 24 here, and this Court should reject Plaintiffs’ challenge to Defendants’ privilege logs— 25 26 27 28 6 Nonetheless, to facilitate resolution of this current dispute, Defendants now submit a declaration to support their claim of privilege. As indicated on the privilege logs and further supported by the affidavit of Matthew D. Emrich, the information withheld is protected by the law enforcement privilege. See Perez Decl., Ex. 1 – 4; Aff. of Matthew D. Emrich (attached hereto as Ex. 2). RESPONSE IN OPPOSITION TO MOTION TO COMPEL - 8 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 119 Filed 02/20/18 Page 9 of 16 1 particularly when Plaintiffs continue to refuse to identify any specific documents that they are 2 challenging. 3 Additionally, in reviewing Plaintiffs’ challenge to Defendants’ claim of the law 4 enforcement privilege, the decision of the District Court for the District of Columbia in ACLU of 5 S. Calif. v. USCIS is instructive. 133 F. Supp. 3d 234 (D.D.C. 2015). In response to a Freedom of 6 Information Act (“FOIA”) request by one of Plaintiffs’ counsel, USCIS withheld similar 7 information from USCIS CARRP policy and operational guidance 7 under FOIA Exemption 7E, 8 which protects records that would disclose techniques and procedures for law enforcement 9 investigations. 8 5 U.S.C. § 552(b)(7)(E) (Exemption 7E affords protection to law enforcement 10 information that “would disclose techniques and procedures for law enforcement investigations 11 or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions 12 if such disclosure could reasonably be expected to risk circumvention of the law.”). The ACLU 13 challenged USCIS’s withholding of the documents under FOIA Exemption 7E. ACLU of S. 14 Calif., 133 F. Supp. 3d. at 234 (noting the ACLU is “challenging [USCIS’s] search and 15 withholdings in response to ACLU’s May 17, 2012 FOIA request. That request broadly sought 16 two categories of information: records relating to or concerning “policies for the identification, 17 vetting and adjudication of immigration benefits applications with national security concerns”). 18 The court rejected in part ACLU’s challenge and granted summary judgment, partially upholding 19 USCIS’s withholding from the information under FOIA Exemption 7E. 9 Id., at 245 (finding that 20 USCIS “adequately describe[d] both the law enforcement purpose at issue and the risk of 21 circumvention of the law”). 22 23 24 25 26 27 28 7 The documents released in response to the ACLU’s FOIA request included documents not yet produced by Defendants in this litigation. The specific documents disputed in this instant motion, which were also released in response to the ALCU’s FOIA request, are DEF-00000009 to DEF-00000017; DEF-00000191 to DEF-00000199; DEF-00000984 to DEF-00001029; DEF-00001083 to DEF-00001087, which are core CARRP policy and operational guidance. 8 Plaintiffs’ First Set of Requests for Production, Request for Production 39 requested these documents in unredacted form. Ex. A, Perez Decl., ECF No. 92 (“REQUEST FOR PRODUCTION NO. 39: All Documents previously withheld or produced in redacted form pursuant to any exemption from the Freedom of Information Act, produced in unredacted form. This request is limited to Documents withheld or produced in response to the ACLU FOIA Request.). 9 The court upheld USCIS’s withholding of information contained in the documents noted in footnote 7. See supra, fn. 7. RESPONSE IN OPPOSITION TO MOTION TO COMPEL - 9 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 119 Filed 02/20/18 Page 10 of 16 1 Congress has also recognized the importance of the investigatory files privilege by 2 incorporating a similar provision as Exemption 7 of the FOIA. 5 U.S.C. § 552(b)(7); see Ctr. for 3 Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918, 925-2626 (D.C. Cir. 2003) (quoting NLRB v. 4 Robbins Tire & Rubber Co., 437 U.S. 214, 232 (1978)) (“‘Congress recognized that law 5 enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies 6 be hindered in their investigations.’”). And, courts have recognized the relationship between 7 FOIA exemption 7 and the law enforcement privilege. See Commonwealth of Puerto Rico v. 8 United States, 490 F.3d 50, 63 (1st Cir. 2007) (stating this exemption “provide[s] guidance in 9 determining the appropriate scope of the [law enforcement] privilege”). Therefore, this Court 10 should take into account the agency’s legitimate needs and concerns, as recognized by Congress 11 and other courts throughout the country when evaluating USCIS’s assertion of the law 12 enforcement privilege. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. The Protective Order Does Not Provide Adequate Protection for Information About Law Enforcement Investigatory Techniques and Procedures Plaintiffs argue that the Court should allow disclosure of the privileged information under the Stipulated Protective Order, ECF No. 86. Although the law enforcement privilege is a qualified privilege, the Court must conduct a case-by-case balancing analysis of the interests of the requesting party against the interest of the governmental entity. Kelly v. City of San Jose, 114 F.R.D. 653, 660 (N.D. Cal. 1987); see In re Sealed Case, 856 F.2d at 272 (“The public interest in nondisclosure must be balanced against the need of a particular litigant for access to the privileged information.”). The balancing analysis includes the following factors: “(1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) RESPONSE IN OPPOSITION TO MOTION TO COMPEL - 10 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 119 Filed 02/20/18 Page 11 of 16 1 whether the plaintiff's suit is non-frivolous and brought in good faith; (9) whether the 2 information sought is available through other discovery or from other sources; and (10) the 3 importance of the information sought to the plaintiff's case.” Frankenhauser v. Rizzo, 59 F.R.D. 4 339, 344 (E.D. Pa. 1973), overruled on other grounds, Startzell v. City of Philadelphia, No. 05- 5 05287, 2006 U.S. Dist. LEXIS 74579 (E.D. Pa. Oct. 13, 2006). Because Plaintiffs seek law 6 enforcement privileged information, they must state their compelling need for the information 7 withheld. See In re City of N.Y., 607 F.3d 923, 945 (2nd Cir. 2010) (holding “that a ‘compelling 8 need’ is required” when a party seeks law enforcement privileged information). Here, Plaintiffs 9 certainly have not put forward any showing 10 to overcome the need to protect such information, 10 nor can they in this case. 11 Courts have recognized that the release of law enforcement techniques and procedures 12 used to conduct ongoing or future investigations under a protective order is different from the 13 release of other information protected under the law enforcement privilege. The purpose of the 14 law enforcement privilege is to prevent the disclosure of “law enforcement techniques and 15 procedures” and to prevent “inference with an investigation.” State Comp. Ins. Fund, 2016 WL 16 3546583, at *5 (“The purpose of this privilege is to prevent disclosure of law enforcement 17 techniques and procedures, to preserve the confidentiality of sources, to protect witness and law 18 enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and 19 otherwise to prevent interference with an investigation.”); Tuite v. Henry, 181 F.R.D. 175, 176- 20 77 (D.D.C. 1998), aff'd per curiam, 203 F.3d 53, 340 U.S. App. D.C. 183 (D.C. Cir. 1999) (the 21 law enforcement privilege aims to protect the integrity of law enforcement techniques, sources, 22 and investigations—disclosure of which would be “contrary to the public interest in the effective 23 functioning of law enforcement.”); Abdou v. Gurrieri, No. 05 Civ. 3946 (JG) (KAM), 2006 U.S. 24 Dist. LEXIS 68650, 2006 WL 2729247, at *3 (E.D.N.Y. Sept. 25, 2006) (finding documents 25 subject to the law enforcement privilege where disclosure “would reveal how the FBI follows up 26 on confidential lead[s] and the tools, techniques and procedures utilized in such an 27 28 10 Because Plaintiffs did not address the importance of the information in their motion, the court should not consider an argument in Plaintiffs’ reply brief without giving Defendants an opportunity to respond. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996). RESPONSE IN OPPOSITION TO MOTION TO COMPEL - 11 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 119 Filed 02/20/18 Page 12 of 16 1 investigation”). When balancing the interests of the requesting party against the interest of the 2 governmental entity, courts routinely withhold information of law enforcement techniques and 3 procedures, especially when that information will interfere with ongoing or future investigations. 4 See In re City of N.Y., 607 F.3d. at 935-36 (discussing the risk of harm from release of 5 investigatory procedures under an “attorney’s eyes only” provision or filing under seal and 6 declining to release or filing the information where public safety is at issue); see also 7 Frankenhauser, 59 F.R.D. at 346 (allowing disclosure of police files where the police 8 investigation occurred two years prior and no criminal charges had been brought against anyone 9 and no party seeking discovery was a potential defendant in any criminal case arising out of the 10 incidents in question); Elliott v. Webb, 98 F.R.D. 293, 297 (D. Idaho 1983) (relying on 11 Frankenhauser, articulated that the distinctions between completed versus ongoing 12 investigations and factual versus self-evaluative material were the more important factors, 13 finding material contained in ongoing investigations should ordinarily remain confidential); 14 Coalition v. Jewell, 292 F.R.D. 44, 51-52 (D.D.C. 2013) (rejecting disclosure of “information 15 [that] could forewarn potential attackers by providing them with sensitive information that could 16 be utilized to circumvent law enforcement efforts.”). 17 The cases cited by Plaintiffs in support of disclosure under a protective order are 18 inapposite. Cf. In re Anthem, Inc. Data Breach Litig., 236 F. Supp. 3d 150, 166-7 (D.D.C. 2017) 19 (ordering the disclosure of information that “d[id] not pertain to an ongoing or closed criminal or 20 civil investigation of a particular law violation” under a protective order); Ibrahim v. Dep’t of 21 Homeland Sec., C 06-00545 WHA, 2009 WL 5069133, at *15 (N.D. Cal. Dec. 17, 2009), 22 vacated and remanded on other grounds, 669 F.3d 983 (9th Cir. 2012) (ordering the disclosure 23 of a “transcript of the teletype that SFPD officers received from law enforcement databases about 24 plaintiff” under a protective order); MacNamara v. City of New York, 249 F.R.D. 70, 87-89 25 (S.D.N.Y. 2008) (ordering disclosure of documents that “contain information regarding specific 26 vulnerabilities in the NYPD's ability to respond to instances of mass disorder, as well as specific 27 techniques and procedures employed by, or expected to be employed by, the NYPD in 28 responding to such activity” under a protective order) (emphasis added); Nat’l Cong. for Puerto RESPONSE IN OPPOSITION TO MOTION TO COMPEL - 12 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 119 Filed 02/20/18 Page 13 of 16 1 Rican Rights ex rel. Perez v. City of New York, 194 F.R.D. 88, 94, 96 (S.D.N.Y. 2000) (ordering 2 disclosure of the “disciplinary records concerning individual officers” under a protective order, 3 but rejecting disclosure of documents that “describe investigatory techniques and strategies”). 4 USCIS is a component of the Department of Homeland Security responsible for 5 determining whether individuals or organizations filing for immigration benefits pose a threat to 6 national security, public safety, or the integrity of the nation’s immigration system. Emrich Aff. ¶ 7 5. As part of its duties, USCIS establishes guidance and processes for identifying, reviewing, and 8 vetting immigration benefit applications that involve national security concerns. Id. ¶ 4. Here, the 9 information withheld as privileged includes documents that identify internal case handling 10 procedures for the adjudication of immigration benefit applications, identifies sensitive 11 information about law enforcement checks, contains record identification numbers and similar 12 codes, and identifies shortcomings and vulnerabilities of vetting. Id. ¶ 12. As Associate Director 13 Emrich explains, there is a significant risk of harm from disclosure of this information to any 14 third party because the information would allow insight into sensitive agency processes used to 15 vet an applicant for an immigration benefit and to adjudicate an applicant’s immigration benefit 16 application, id. ¶ 13, information that would potentially permit an applicant to adjust tactics or 17 responses, so as to counteract the agency’s ability to identify the truth and detect national 18 security threats, id. ¶ 14. Associate Director Emrich provides specific examples to demonstrate 19 the type of harm that would occur if the investigatory procedures were released to the public. Id. 20 ¶ 25. Indeed, Associate Director Emrich addresses that even disclosure under a protective order 21 would inadequately protect the information. Id. ¶ 11. Balancing the risk at hand, the risk of harm 22 to the integrity of the nation’s immigration process and security greatly outweighs any benefit 23 Plaintiffs might receive through accessing this information. 24 V. 25 CONCLUSION Defendants have properly claimed the law enforcement privilege and have provided the 26 necessary information to document their claim of privilege. Further, through the agency official’s 27 declaration, Defendants have established that the information withheld is privileged. Therefore, 28 the court should deny Plaintiffs’ motion to compel. RESPONSE IN OPPOSITION TO MOTION TO COMPEL - 13 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 119 Filed 02/20/18 Page 14 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Dated: February 20, 2018 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General Civil Division EDWARD S. WHITE Senior Litigation Counsel National Security & Affirmative Litigation Unit WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation TIMOTHY M. BELSAN Deputy Chief, National Security & Affirmative Litigation Unit AARON R. PETTY Trial Attorney, National Security & Affirmative Litigation Unit /s/ Joseph F. Carilli, Jr. JOSEPH F. CARILLI, JR. Trial Attorney, National Security & Affirmative Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0868 Telephone: (202) 616-4848 Facsimile: (202) 305-7000 E-mail: joseph.f.carilli2@usdoj.gov 15 16 Counsel for Defendants 17 18 19 20 21 22 23 24 25 26 27 28 RESPONSE IN OPPOSITION TO MOTION TO COMPEL - 14 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 119 Filed 02/20/18 Page 15 of 16 1 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 20, 2018, I electronically filed the foregoing with 3 the Clerk of the Court using the CM/ECF system, which will send notification of such filing to 4 the following CM/ECF participants: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Harry H. Schneider, Jr., Esq. Nicholas P. Gellert, Esq. David A. Perez, Esq. Kathryn Reddy, Esq. Perkins Coie L.L.P. 1201 Third Ave., Ste. 4800 Seattle, WA 98101-3099 PH: 359-8000 FX: 359-9000 Email: HSchneider@perkinscoie.com Email: NGellert@perkinscoie.com Email: DPerez@perkinscoie.com Email: KReddy@perkinscoie.com Matt Adams, Esq. Glenda M. Aldana Madrid, Esq. Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 PH: 957-8611 FX: 587-4025 E-mail: matt@nwirp.org E-mail: glenda@nwirp.org 19 20 21 22 23 24 25 26 27 28 Emily Chiang, Esq. ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 E-mail: Echiang@aclu-wa.org Jennifer Pasquarella, Esq. ACLU Foundation of Southern California 1313 W. 8th Street Los Angeles, CA 90017 Telephone: (213) 977-5211 Facsimile: (213) 997-5297 E-mail: jpasquarella@aclusocal.org RESPONSE IN OPPOSITION TO MOTION TO COMPEL - 15 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case 2:17-cv-00094-RAJ Document 119 Filed 02/20/18 Page 16 of 16 1 2 3 4 5 6 7 8 9 10 Stacy Tolchin, Esq. Law Offices of Stacy Tolchin 634 S. Spring St. Suite 500A Los Angeles, CA 90014 Telephone: (213) 622-7450 Facsimile: (213) 622-7233 E-mail: Stacy@tolchinimmigration.com Trina Realmuto, Esq. Kristin Macleod-Ball, Esq. National Immigration Project of the National Lawyers Guild 14 Beacon St., Suite 602 Boston, MA 02108 Telephone: (617) 227-9727 Facsimile: (617) 227-5495 E-mail: trina@nipnlg.org E-mail: kristin@nipnlg.org 11 12 13 14 15 16 17 18 19 20 21 Hugh Handeyside, Esq. Lee Gelernt, Esq. Hina Shamsi, Esq. American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004 Telephone: (212) 549-2616 Facsimile: (212) 549-2654 E-mail: lgelernt@aclu.org E-mail: hhandeyside@aclu.org E-mail: hshamsi@aclu.org /s/ Joseph F. Carilli, Jr. JOSEPH F. CARILLI, JR. Trial Attorney, National Security & Affirmative Litigation Unit 22 23 24 25 26 27 28 RESPONSE IN OPPOSITION TO MOTION TO COMPEL - 16 (2:17-cv-00094-RAJ) UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542 Case Document 119-1 Filed 02/20/18 Page 1 of 26 Eh?tl Case 2:17-cv-00094-RAJ Document 119-1 Filed 02/20/18 Page 2 of 26 1 The Honorable Richard A. Jones 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 ABDIQAFAR WAGAFE, et al., Plaintiffs, 11 v. 12 13 DONALD TRUMP, President of the 14 United States, et al., 15 No. 2:17-cv-00094-RAJ DECLARATION OF JOSEPH F. CARILLI, JR. Defendants. 16 I, Joseph F. Carilli, Jr., counsel for Respondents hereby declare and state the following: 17 1. I am a member of the State Bar of New Hampshire. I am employed as a Trial 18 Attorney at U.S. Department of Justice, Civil Division, Office of Immigration Litigation, District 19 Court Section. I have personal knowledge of the events described therein, and could testify to 20 them if called to do so. 21 2. I represent Defendants in the above captioned case. 22 3. Defendants have produced documents on the following dates: 23 a. 24 F. Carilli, Jr. to Plaintiffs’ counsel (Oct. 5, 2017) (attached hereto as Exhibit A); 25 b. 26 from Joseph F. Carilli, Jr. to Plaintiffs’ counsel (Oct. 30, 2017) (attached hereto as 27 Exhibit B); October 5, 2017. Defendant USCIS Volume 001. See Letter from Joseph October 30, 2017. Defendant USCIS Volume 002 and 003. See Letter 28 DECLARATION OF JOSEPH F. CARILLI, JR. - 1 (2:17-cv-00094-RAJ) Case 2:17-cv-00094-RAJ Document 119-1 Filed 02/20/18 Page 3 of 26 1 c. 2 Joseph F. Carilli, Jr. to Plaintiffs’ counsel (Nov. 22, 2017) (attached hereto as 3 Exhibit C); and, 4 d. 5 Joseph F. Carilli, Jr. to Plaintiffs’ counsel (Feb. 12, 2017) (attached hereto as 6 Exhibit D). 7 4. November 22, 2107. Defendant USCIS Volume 004. See Letter from February 12, 2018.. Defendant USCIS Volume 005. See Letter from Subsequent to the production of Defendant USCIS Volume 001 through 004, 8 Defendants produced a privilege log: October 30, 2017 (Defendant USCIS Volume 001), see E- 9 mail from Joseph F. Carilli, Jr. to Plaintiffs’ counsel (Oct. 30, 2017) (attached hereto as Exhibit 10 E); November 3, 2017 (Defendant USCIS Volume 002), see E-mail from Joseph F. Carilli, Jr. to 11 Plaintiffs’ counsel (Nov. 6, 2017) (attached hereto as Exhibit F); November 6, 2017 (Defendant 12 USCIS Volume 003); and, November 28, 2017 (Defendant USCIS Volume 004), see E-mail 13 from Joseph F. Carilli, Jr. to Plaintiffs’ counsel (Nov. 28, 2017) (attached hereto as Exhibit G). 14 Defendants, in each privilege log, noted their claims of the attorney-client privilege, the 15 deliberative process privilege, and/or law enforcement privilege. 16 5. On January 19 and 26, 2018, via telephone conference, Plaintiffs challenged 17 Defendants’ claim of the law enforcement privilege as to every document. Defendants asked 18 Plaintiffs to identify the specific documents for which Plaintiffs were challenging the claim of 19 privilege. Plaintiffs did not identify any specific documents. Subsequent to the meet and confer, 20 on January 31, 2018, Defendants produced revised privilege logs to further document and clarify 21 the nature of Defendants’ privilege claims. See Letter from Joseph F. Carilli, Jr. to Plaintiffs’ 22 counsel (Jan. 31, 2018) (attached hereto as Exhibit H). 23 24 25 26 27 28 DECLARATION OF JOSEPH F. CARILLI, JR. - 2 (2:17-cv-00094-RAJ) Case 2:17-cv-00094-RAJ Document 119-1 Filed 02/20/18 Page 4 of 26 1 Dated: February 20, 2018 2 Respectfully submitted, By: /s/ Joseph F. Carilli, Jr. JOSEPH F. CARILLI, JR. E-mail: joseph.f.carilli2@usdoj.gov N.H. Bar Identification No. 15311 Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 616-4848 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JOSEPH F. CARILLI, JR. - 3 (2:17-cv-00094-RAJ) Case Document 119-1 Filed 02/20/18 Page 5 of 26 BthA Case Document 119-1 Filed 02/20/18 Page 6 of 26 U.S. Department of Justice Civil Division Office oflmmigration Litigation District our! Section Direct Dial: (202) 616-9131 Box 868 Facsimile: (202) 305-7000 Ben Franklin Station Washington. DC 20044-0868 October 5, 2017 VIA EMAIL Mr. Nicholas P. Gellert (NGellert@perkinscoie.com) Mr. David A. Perez (DPerez@perkinscoie.com) Ms. Laura K. Hennessey (LHennessey@perkinscoie.com) Perkins Coie 1201 Third Avenue, Suite 4900 Seattle. WA 98101-3099 Ms. Jennifer Pasquarella (JPasquarella@aclusocal.org) Mr. Sameer Ahmed (SAhmed@aclusocal.org) AC LU Foundation of Southern alifomia 1313 W. 8th Street Los Angeles. CA 90017 Re: Wagq/?. et al.. v. Trump. et al., No. (W.D. Wash.) Document Production (Production Volume Defendant USC IS 001) Dear Counsel: Please see enclosed document production for Production Volume Defendant USC IS 001, Bates number DEF-00000001 through DEF-00001446. A password will be sent to you via e- mail message. The privilege log associated with this production volume will be sent via separate correspondence. Please let me know if you have any questions. 5' rely, SEPH F.CAR1LL rial Attorney EDWARD S. WHITE Senior Litigation Counsel AARON R. PETTY Trial Attorney National Security Af?rmative Litigation Unit Case Document 119-1 Filed 02/20/18 Page 7 of 26 Case Document 119-1 Filed 02/20/18 Page 8 of 26 US. Department of Justice Civil Division Office of Immigration Litigation District Court Section Direct Dial: (202) 616-9131 PO. Box 868 Facsimile: (202) 305-7000 Ben Franklin Station Washington, DC 20044-0868 October 27, 2017 Mr. Nicholas P. Gellert (N Gellert@perkinscoie.com) Mr. David A. Perez (DPerez@perkinscoie.com) Ms. Laura K. Hennessey (LHennessey@perkinscoie.com) Perkins Coie 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Ms. Jennifer Pasquarella (JPasquarella@aclusoca1.org) Mr. Sameer Ahmed (SAhmed@aclusocal.org) ACLU Foundation of Southern California 1313 W. 8th Street Los Angeles, CA 90017 Re: Wagafe, et al., v. Trump, et at, No. (W.D. Wash.) Document Production (Production Volume Defendant USCIS 002, 003) Dear Counsel: Please see enclosed document production for Production Volume Defendant USCIS 002, Bates number DEF-00001600 through DEF-00002652, and Production Volume Defendant USCIS 003, Bates number DEF-00002653 through DEF-00004536. A password will be sent to you via e-mail message. The privilege log associated with these production volumes will be sent via separate correspondence. Bates number DEF-00001447 through DEF-00001599 will not be utilized. Production Volume Defendant USCIS 002 are documents associated with a US Citizenship and Immigration Services Controlled Application Review and Resolution Program independent study course. During processing of this Adobe Dreamweaver ?le, the embedded content was extracted. This content was then uploaded to our review platform in its respective parts. All associated content with this Adobe Dreamweaver ?le is included in Production Volume Defendant USCIS 002. Please let me know if you have any questions. Case Document 119-1 Filed 02/20/18 Page 9 of 26 Wagafe, et al., v. Trump, et al., No, (W.D. Wash.) Sincerely, 97c. CW WARD S. WHI Senior Litigation Counsel AARON R. PETTY JOSEPH F. CARILLI, JR. Trial Attorneys National Security Af?rmative Litigation Unit Case Document 119-1 Filed 02/20/18 Page 10 of 26 EthC Case Document 119-1 Filed 02/20/18 Page 11 of 26 US. Department of Justice Civil Division Of?ce o/?lmmigration Litigation District Court Section Direct Dial: (202) 616-9131 P.O. Box 868 Facsimile: (202) 305-7000 Ben Franklin Station Washington. DC 20044-0868 Novemer 22. 2017 VIA EMAIL Mr. Nicholas P. Gellert (NGellert@perkinscoie.com) Mr. David A. Perez (DPerez@perkinscoie.com) Ms. Laura K. Hennessey (LHennessey@perkinscoie.com) Perkins Coie 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Ms. Jennifer Pasquarella (JPasquarella@ac1usocal.org) Mr. Sameer Ahmed (SAhmed@aclusocal.org) ACLU Foundation of Southern California 1313 W. 8th Street Los Angeles. CA 90017 Re: Wagqfe. et al.. v. Trump, er No. (W.D. Wash.) Document Production (Production Volume Defendant USCIS 004) Dear Counsel: Please see enclosed document production for Production Volume Defendant USCIS 004, Bates number DEF -00004537 through DEF-00004962. A password will be sent to you via e- mail message. The privilege log associated with this production volume will be sent via separate correspondence. Please let me know if you have any questions. - Si erely, 74609 SEPH F. CARILLI. JR. rial Attorney EDWARD S. WHITE Senior Litigation Counsel AARON R. PETTY Trial Attorney National Security Affirmative Litigation Unit Case Document 119-1 Filed 02/20/18 Page 12 of 26 EthD Case Document 119-1 Filed 02/20/18 Page 13 of 26 US. Department of Justice Civil Division Office of Immigration Litigation District Court Section Direct Dial: (202) 616-9131 PO. Box 868 Facsimile: (202) 305-7000 Ben Franklin Station Washington, DC 20044-0868 February 12, 2018 VIA EMAIL Mr. Nicholas P. Gellert (NGellert@perkinscoie.com) Mr. David A. Perez (DPerez@perkinscoie.com) Ms. Laura K. Hennessey (LHennessey@perkinscoie.com) Perkins Coie 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Ms. Jennifer Pasquarella (JPasquarella@aclusocal.org) Mr. Sameer Ahmed (SAhmed@aclusocal.org) ACLU Foundation of Southern California 1313 W. 8th Street Los Angeles, CA 90017 Re: Wagafe, et al., v. Trump, et al., No. (W.D. Wash.) Document Production (Production Volume Defendant USCIS 005) Dear Counsel: Please see enclosed document production for Production Volume Defendant USCIS 005, Bates number DEF-00004963 through DEF-00005691. A password will be sent to you via e- mail message. The privilege log associated with this production volume will be sent via separate correspondence. Please let me know if you have any questions. Si ce7ely, MQEPH F. CARIL JR. Trial Attorney EDWARD S. WHITE Senior Litigation Counsel AARON R. PETTY Trial Attorney National Security &.Aff1rmative Litigation Unit Case Document 119-1 Filed 02/20/18 Page 14 of 26 BthE Case 2:17-cv-00094-RAJ Document 119-1 Filed 02/20/18 Page 15 of 26 From: To: Cc: Subject: Date: Attachments: Carilli, Joseph F. (CIV) Hennessey, Laura K. (Perkins Coie); Gellert, Nicholas (Perkins Coie); Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG); Perez, David A. (Perkins Coie); Sameer Ahmed (SAhmed@ACLUSOCAL.ORG) Petty, Aaron (CIV); White, Edward S. (CIV) Wagafe v. Trump, No. 17-00094 (W.D. Wash.) - Production Volume Defendant USCIS 001 Privilege Log Monday, October 30, 2017 5:04:59 PM Privilege Log (Prod Vol Def USCIS 001).xlsx Counsel, Good afternoon. Please see attached. Please have a nice evening. Regards, Joseph Carilli From: Hennessey, Laura K. (Perkins Coie) [mailto:LHennessey@perkinscoie.com] Sent: Friday, October 06, 2017 1:21 PM To: Carilli, Joseph F. (CIV) ; Gellert, Nicholas (Perkins Coie) ; Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG) ; Perez, David A. (Perkins Coie) ; Sameer Ahmed (SAhmed@ACLUSOCAL.ORG) Cc: Petty, Aaron (CIV) ; White, Edward S. (CIV) Subject: RE: Wagafe v. Trump, No. 17-00094 (W.D. Wash.) - Production Volume Defendant USCIS 001 Thank you, Joe. Laura Laura Kaplan Hennessey Perkins Coie LLP D. +1.206.359.3592 E. LHennessey@perkinscoie.com From: Carilli, Joseph F. (CIV) [mailto:Joseph.F.Carilli2@usdoj.gov] Sent: Friday, October 06, 2017 3:43 AM To: Gellert, Nicholas (SEA); Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG); Perez, David A. (SEA); Hennessey, Laura K. (SEA); Sameer Ahmed (SAhmed@ACLUSOCAL.ORG) Cc: Petty, Aaron (CIV); White, Edward S. (CIV) Subject: Wagafe v. Trump, No. 17-00094 (W.D. Wash.) - Production Volume Defendant USCIS 001 Counsel, Good morning. A copy of Production Volume Defendant USCIS 001 has been sent to your offices via FedEx on October 5, 2017. The tracking numbers are 770428714759 (Perkins Coie) and 770428756310 (ACLU). The password is Prodvol01!. Please have a nice weekend. Regards, Joseph Carilli Case 2:17-cv-00094-RAJ Document 119-1 Filed 02/20/18 Page 16 of 26 NOTICE: This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you. Case Document 119-1 Filed 02/20/18 Page 17 of 26 Eh?tF Case 2:17-cv-00094-RAJ Document 119-1 Filed 02/20/18 Page 18 of 26 From: To: Cc: Subject: Date: Attachments: Carilli, Joseph F. (CIV) Hennessey, Laura K. (Perkins Coie) Petty, Aaron (CIV); White, Edward S. (CIV); Gellert, Nicholas (Perkins Coie); Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG); Perez, David A. (Perkins Coie); Sameer Ahmed (SAhmed@ACLUSOCAL.ORG) RE: Wagafe v. Trump, No. 17-00094 (W.D. Wash.) - Production Volume Defendant USCIS 003 Privilege Log Monday, November 06, 2017 1:26:41 PM Privilege Log (Prod Vol Def USCIS 003).pdf Ms. Hennessey, Good morning. Please see attached. Please have a nice afternoon. Regards, Joseph Carilli From: Hennessey, Laura K. (Perkins Coie) [mailto:LHennessey@perkinscoie.com] Sent: Monday, November 06, 2017 12:47 PM To: Carilli, Joseph F. (CIV) ; Gellert, Nicholas (Perkins Coie) ; Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG) ; Perez, David A. (Perkins Coie) ; Sameer Ahmed (SAhmed@ACLUSOCAL.ORG) Cc: Petty, Aaron (CIV) ; White, Edward S. (CIV) Subject: RE: Wagafe v. Trump, No. 17-00094 (W.D. Wash.) - Production Volume Defendant USCIS 002 Privilege Log Joseph, Thank you for sending along this privilege log for Production Volume 2. When can we expect a privilege log for Production Volume 3? Best, Laura Laura Kaplan Hennessey Perkins Coie LLP 1201 Third Avenue Suite 4900 Seattle, WA 98101-3099 D. +1.206.359.3592 F. +1.206.359.4592 E. LHennessey@perkinscoie.com From: Carilli, Joseph F. (CIV) [mailto:Joseph.F.Carilli2@usdoj.gov] Sent: Friday, November 3, 2017 9:11 AM To: Hennessey, Laura K. (SEA) ; Gellert, Nicholas (SEA) ; Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG) ; Perez, David A. (SEA) ; Sameer Ahmed (SAhmed@ACLUSOCAL.ORG) Cc: Petty, Aaron (CIV) ; White, Edward S. (CIV) Subject: RE: Wagafe v. Trump, No. 17-00094 (W.D. Wash.) - Production Volume Defendant USCIS Case 2:17-cv-00094-RAJ Document 119-1 Filed 02/20/18 Page 19 of 26 002 Privilege Log Counsel, Good morning. Please see attached. Please have a nice weekend. Regards, Joe From: Hennessey, Laura K. (Perkins Coie) [mailto:LHennessey@perkinscoie.com] Sent: Tuesday, October 31, 2017 11:51 AM To: Carilli, Joseph F. (CIV) ; Gellert, Nicholas (Perkins Coie) ; Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG) ; Perez, David A. (Perkins Coie) ; Sameer Ahmed (SAhmed@ACLUSOCAL.ORG) Cc: Petty, Aaron (CIV) ; White, Edward S. (CIV) Subject: RE: Wagafe v. Trump, No. 17-00094 (W.D. Wash.) - Production Volume Defendant USCIS 002, 003 Thanks, Joseph. Laura Kaplan Hennessey Perkins Coie LLP 1201 Third Avenue Suite 4900 Seattle, WA 98101-3099 D. +1.206.359.3592 F. +1.206.359.4592 E. LHennessey@perkinscoie.com From: Carilli, Joseph F. (CIV) [mailto:Joseph.F.Carilli2@usdoj.gov] Sent: Tuesday, October 31, 2017 2:07 AM To: Hennessey, Laura K. (SEA) ; Gellert, Nicholas (SEA) ; Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG) ; Perez, David A. (SEA) ; Sameer Ahmed (SAhmed@ACLUSOCAL.ORG) Cc: Petty, Aaron (CIV) ; White, Edward S. (CIV) Subject: Re: Wagafe v. Trump, No. 17-00094 (W.D. Wash.) - Production Volume Defendant USCIS 002, 003 Ms. Hennessey, Good morning. The issue was related to incorrect addresses The shipping label had the to and from addresses transposed. Regards, Case 2:17-cv-00094-RAJ Document 119-1 Filed 02/20/18 Page 20 of 26 Joseph Carilli Sent from my Verizon, Samsung Galaxy smartphone -------- Original message -------From: "Hennessey, Laura K. (Perkins Coie)" Date: 10/31/17 1:08 AM (GMT-05:00) To: "Carilli, Joseph F. (CIV)" , "Gellert, Nicholas (Perkins Coie)" , "Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG)" , "Perez, David A. (Perkins Coie)" , "Sameer Ahmed (SAhmed@ACLUSOCAL.ORG)" Cc: "Petty, Aaron (CIV)" , "White, Edward S. (CIV)" Subject: RE: Wagafe v. Trump, No. 17-00094 (W.D. Wash.) - Production Volume Defendant USCIS 002, 003 Joseph, Could you clarify—was the issue related to the content of the production or was the first version simply sent to incorrect addresses? Thanks, Laura Laura Kaplan Hennessey Perkins Coie LLP 1201 Third Avenue Suite 4900 Seattle, WA 98101-3099 D. +1.206.359.3592 F. +1.206.359.4592 E. LHennessey@perkinscoie.com From: Carilli, Joseph F. (CIV) [mailto:Joseph.F.Carilli2@usdoj.gov] Sent: Monday, October 30, 2017 3:14 PM To: Gellert, Nicholas (SEA) ; Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG) ; Perez, David A. (SEA) ; Hennessey, Laura K. (SEA) ; Sameer Ahmed (SAhmed@ACLUSOCAL.ORG) Cc: Petty, Aaron (CIV) ; White, Edward S. (CIV) Subject: RE: Wagafe v. Trump, No. 17-00094 (W.D. Wash.) - Production Volume Defendant USCIS 002, 003 Counsel, Please accept my apologies. The aforementioned production volumes are being re-sent to you this evening. Case 2:17-cv-00094-RAJ Document 119-1 Filed 02/20/18 Page 21 of 26 The tracking numbers are 770625604854 (Perkins Coie) and 770625613701 (ACLU). Please have a nice evening. Regards, Joseph Carilli From: Carilli, Joseph F. (CIV) Sent: Friday, October 27, 2017 4:35 PM To: Gellert, Nicholas (Perkins Coie) ; Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG) ; Perez, David A. (Perkins Coie) ; Hennessey, Laura K. (Perkins Coie) ; Sameer Ahmed (SAhmed@ACLUSOCAL.ORG) Cc: Petty, Aaron (CIV) ; White, Edward S. (CIV) Subject: Wagafe v. Trump, No. 17-00094 (W.D. Wash.) - Production Volume Defendant USCIS 002, 003 Counsel, Good afternoon. A copy of Production Volume Defendant USCIS 002 and 003 has been sent to your offices via FedEx today, October 27, 2017. The tracking numbers are 8116 6805 6830 (Perkins Coie) and 8116 6805 6829 (ACLU). The password for Production Volume Defendant USCIS 002 is Prodvol02@. password for Production Volume Defendant 003 is Prodvol03#. The Please have a nice weekend. Regards, Joseph Carilli NOTICE: This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you. NOTICE: This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you. NOTICE: This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you. Case Document 119-1 Filed 02/20/18 Page 22 of 26 13111th Case 2:17-cv-00094-RAJ Document 119-1 Filed 02/20/18 Page 23 of 26 From: To: Cc: Subject: Date: Attachments: Carilli, Joseph F. (CIV) Hennessey, Laura K. (Perkins Coie); Gellert, Nicholas (Perkins Coie); Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG); Perez, David A. (Perkins Coie); Sameer Ahmed (SAhmed@ACLUSOCAL.ORG) Petty, Aaron (CIV); White, Edward S. (CIV) RE: Wagafe v. Trump, No. 17-00094 (W.D. Wash.) - Production Volume Defendant USCIS 004 Privilege Log Tuesday, November 28, 2017 1:13:33 PM Privilege Log (Prod Vol Def USCIS 004).pdf Counsel, Good morning. Please see attached. Please have a nice afternoon. Regards, Joseph Carilli From: Carilli, Joseph F. (CIV) Sent: Wednesday, November 22, 2017 11:40 AM To: Hennessey, Laura K. (Perkins Coie) ; Gellert, Nicholas (Perkins Coie) ; Jennie Pasquarella (JPasquarella@ACLUSOCAL.ORG) ; Perez, David A. (Perkins Coie) ; Sameer Ahmed (SAhmed@ACLUSOCAL.ORG) Cc: Petty, Aaron (CIV) ; White, Edward S. (CIV) Subject: Wagafe v. Trump, No. 17-00094 (W.D. Wash.) - Production Volume Defendant USCIS 004 Counsel, Good afternoon. A copy of Production Volume Defendant USCIS 004 has been sent to your offices via FedEx today, November 22, 2017. The tracking numbers are 7708 1338 3881 (Perkins Coie) and 7708 1339 7075 (ACLU). The password for Production Volume Defendant USCIS 004 is Prodvol04!. Please have a nice holiday. Regards, Joseph Carilli Joseph F. Carilli, Jr. Trial Attorney U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868 Ben Franklin Station Washington, DC 20044 (202) 616-4848 joseph.f.carilli2@usdoj.gov Case Document 119-1 Filed 02/20/18 Page 24 of 26 Eh?tH Case Document 119-1 Filed 02/20/18 Page 25 of 26 US. Department of Justice Civil Division Office of Immigration Litigation District Court Section Direct Dial: (202) 616-4848 PO. Box 868 Facsimile: (202) 305-7000 Ben Franklin Station Washington. DC 20044-0868 January 31, 2018 VIA EMAIL Mr. Nicholas P. Gellert (NGellert@perkinscoie.com) Mr. David A. Perez (DPere2@perkinscoie.com) Ms. Laura K. Hennessey (LHennessey@perkinscoic.com) Perkins Coie 1201 Third Avenue, Suite 4900 Seattle, WA 98101 -3099 Ms. Jennifer Pasquarella (JPasquarelIa@aclusocal.org) Mr. Sameer Ahmed (SAhmed@aclusocal.org) ACLU Foundation of Southern California 1313 W. 8th Street Los Angeles, CA 90017 Re: Wagqfe. et al.. v. Trump, et al., No. (W.D. Wash.) Meet and Confer on January 19, 2018 and January 26, 2018 (Privilege Logs) Dear ounsel: Regarding your comments about Defendants? privilege logs for Production Volume Defendant USC 1S Volume 001 . 002. 003, and 004 during our meet and confer, via telephone conference, on January 19. 2018 and on January 26, 2018, I offer the following response. Defendants have reviewed the privilege logs timely submitted on October 30, 2017 (Production Volume Defendant USCIS Volume 001), November 3, 2017 (Production Volume Defendant USC IS Volume 002), November 6, 2017 (Production Volume Defendant USCIS Volume 003), and November 28, 2017 (Production Volume Defendant USCIS Volume 004). Defendants submit revised privilege logs, which further document and clarify the nature of Defendants? privilege claims. Accordingly, Defendants assert that the privilege logs are in compliance with Federal Rule of Civil Procedure See FED. R. CIV. P. 26(b)(5) (requiring that a privilege log "describe the nature of the documents, communications, or tangible things not produced or disclosed?and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim?); Alliance v. Whitley Manufacturing Co. Inc. et al.. No. 2015 WL 13567493 (W.D. Wash. Nov. 9, 2015) (?At a minimum, the privilege log must identify the nature of the redacted or withheld information. its date. the parties thereto (and their connection to this Case Document 119-1 Filed 02/20/18 Page 26 of 26 Wagqf?, et al., v. Trump, et al., No, (W.D. Wash.) litigation, if relevant), the privilege that justi?es the failUre to disclose, and any other information necessary to show that the privilege applies?). In addition, Defendants offer the following in response to speci?c comments made during the meet and confer on January 19, 2018: 1. Privilege Description column entry that noted both draft and deliberative, pre- decisional. The entry notes both that the document is a draft and the document includes comments by agency of?cials about the draft document. Multiple similar entries in the Privilege Description column. Because the documents generally relate or refer to a single agency policy, the Controlled Application Review and Resolution Program, the privilege description will most likely be similar. In addition, many entries are the same because they refer to the same document the privilege log for Production Volume Defendant USCIS 001 has 28 entries that refer to the draft of USCIS CARRP). Documents created in the 19703. The title of the documents ?Chart from Webinar Presentation FDNS-DS User Guide updates Articulable Link Training? clearly indicated that the documents relate or refer to the Controlled Application Review and Resolution Program, which was not in existence on the date noted in the Date/Time Created column: 12/3 1/ 1979 12:00:00 AM. Defendants have removed this erroneous date and time. Please let me know if you have any questions. Sincerely, Mgr/Q SEPH F. CARILLI, JR. rial Attorney National Security Af?rmative Litigation Unit EDWARD S. WHITE Senior Litigation Counsel National Security Af?rmative Litigation Unit AARON R. PETTY Trial Attorney National Security Af?rmative Litigation Unit Case Document 119-2 Filed 02/20/18 Page 1 of 22 1311112 m?amng?oomNQM-PUJN??O Case Document 119-2 Filed 02/20/18 Page 2 of 22 The Honorable Richard A. Jones UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ABDIQAFAR WAGAFE, et al., No. AFFIDAVIT OF MATTHEW D. v. EMRICH UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants. I, Matthew D. Emrich, do hereby declare and say: 1. I am the Associate Director of the Fraud Detection and National Security Directorate, US Citizenship and Immigration Services Department of Homeland Security I have held this position since November 15, 2015. 2. As the head of FDNS, I report directly to the Director of USCIS and Deputy Director of USCIS. Prior to becoming Associate Director of FDNS, beginning in November 2012, I was the Deputy Associate Director of FDNS. I ?rst joined USCIS in May 2010, as the Chief of Intelligence Division. Prior to my employment with USCIS, I held various positions within the DHS and its components, including as the Chief of the DHS Threat Task AFFIDAVIT OF MATTHEW D. EMRICH - Case Document 119-2 Filed 02/20/18 Page 3 of 22 Force and a Deputy Assistant Director of Immigration and Customs Enforcement Of?ce of Intelligence. 3. L. Francis Cissna, Director of USCIS, has delegated to me the authority to assert the law enforcement privilege on his behalf regarding the documents at issue in this litigation. 4. As the DNS Associate Director, I am responsible for overseeing all policy, planning, management, and execution functions for DNS. mission is to enhance the integrity of the legal immigration system by leading efforts to identify threats to national security and public safety, detect and combat immigration bene?t fraud, and remove systemic and other vulnerabilities. 5. Under my supervision, FDNS leads efforts to determine whether individuals or organizations ?ling for immigration bene?ts pose a threat to national security, public safety, or the integrity of the nation?s immigration system. As part of its duties, FDNS establishes guidance and oversees the process for identifying, reviewing, and vetting immigration bene?t applications, petitions, and requests (?applications?) that involve national security concerns. FDNS personnel work closely with USCIS adjudicators to resolve such cases and to provide adjudicators with suf?cient information for the adjudicators to determine whether an applicant, petitioner, or requestor (?applicant?) is eligible for the bene?t sought. To ful?ll its mission, FDNS collaborates with counterparts across USCIS, DHS, and the broader U.S. government. FDNS also serves as the agency?s conduit for sharing information with law enforcement and intelligence community partners. 6. I submit this declaration in order to explain how the release of the privileged information in the above-captioned case could undermine the work of USCIS of?cers, lead to AFFIDAVIT OF MATTHEW D. EMRICH - 2 Case Document 119-2 Filed 02/20/18 Page 4 of 22 circumvention of immigration law, facilitate fraud, and pose signi?cant potential to harm national security and public safety. 7. The matters contained in this declaration are based upon my review of documents which have been withheld in the case of Wagafe, et al., v. Trump, et al., Case No. in the United States District Court for the Western District of Washington, my personal knowledge, my knowledge of the documents kept by USCIS in the course of ordinary business, and on information provided to me by other USCIS employees in the course of my of?cial duties as Associate Director of FDNS. 8. As the Associate Director, I am familiar with the USCIS policies and procedures at issue in this motion. These policies and procedures are integral to the proper vetting and adjudication of bene?t applications ?led with USCIS. These documents relate to I) Controlled Application Review and Resolution Program which encompasses national security policies and procedures governing the identification, vetting, and adjudication of applications for naturalization and other immigration bene?ts sought by individuals who could pose national security and public safety concerns; and 2) background check operating procedures, including identity and security checks. As such, these documents have been compiled to delineate internal processes for enforcement of the Immigration and Nationality Act 8 U.S.C. 1101 et seq. The overarching, ?nalized policies and procedures that are at encompassed in this declaration are documented in the following: a. USCIS Handbook National Background Identity and Security Check Operating Procedures b. USCIS PM-602-0063 Updated Instructions for Handling TECS BIO Record (May 23, 2012); AFFIDAVIT OF MATTHEW D. EMRICH - 3 (2: l7-cv-00094-RAJ) p?a Case Document 119-2 Filed 02/20/18 Page 5 of 22 c. USCIS PM-602-0056 Notifying USCIS Headquarters of Requests from Law Enforcement Agenices and intelligence Community Members (January 17, 2012); d. USCIS Memorandum Policy for Vetting and Adjudicating Cases with National Security Concerns (April 11, 2008); e. USCIS Interof?ce Memorandum HQ 70/28.1 Operational Guidance for Vetting and Adjudicating Cases with National Security Concerns (April 24, 2008); f. Attachment to USCIS lnterof?ce Memorandum HQ 70/28.1 Operational Guidance for Vetting and Adjudicating Cases with National Security Concerns (April 24, 2008); g. USCIS Memorandum Additional Guidance on Issues Concerning the Vetting and Adjudication of Cases Involving National Security Concerns (February 6, 2009); h. USCIS Memorandum HQ 70/43 Clari?cation and Delineation of Vetting and Adjudication Responsibilities for Controlled Application Review and Resolution (CARRP) in Domestic Field Of?ces (June 5, 2009); i. USCIS Memorandum 180/ 10.5 Closing Cases in the Fraud Detection and National Security Data Systems (FDNS-DS) (December 15, 2009); j. USCIS Fact Sheet'Frequently Asked Questions (FAQ) CARRP Policy and Operational Guidance (April 2011); AFFIDAVIT OF MATTHEW D. EMRICH - 4 Case Document 119-2 Filed 02/20/18 Page 6 of 22 k. USCIS Policy Memorandum PM-602-0042 Revision of Responsibilities for CARRP Cases Involving Known or Suspected Terrorists (July 26, 2011); and 1. USCIS Supplemental Guidance Revision of Responsibilities for CARRP Cases Involving Known or Suspected Terrorists (Undated). I am also aware of USCIS efforts to review and update these USCIS policies and procedures, to include the CARRP Working Group, the Screening Coordination Working Group and the Advisory Panel 9. I am also aware that in connection with this litigation, Plaintiffs requested the production of documents in Plaintiffs? First Requests for Production to Defendants (?First RF I am aware that Defendants have previously produced copies of documents responsive to the First RFPs (DEF-0000001 to DEF-00004962) in ?ve production volumes, four of which are at issue in the current motion: Production Volume Defendants USCIS 001 Production Volume Defendants USCIS 002, Production Volume Defendants USCIS 003, and Production Volume Defendants USCIS 004. I am ?irther aware that Defendants objected to production of certain documents and withheld those documents on the ground that the information sought was protected from disclosure by the law enforcement privilege. The full list of documents that are at issue in this motion are: a. Sections of the and a superseded to DEF-00004486 to DEF -00004492 to DEF-00004499 to DEF-00004507 to AFFIDAVIT OF MATTHEW D. EMRICH - 5 (2: p?A Case Document 119-2 Filed 02/20/18 Page 7 of 22 b. Drafts of sections and drafts of the to DEF - 00001105; DEF-00001088 to DEF-00001106 to DEF- 00001132; DEF -00001206 to DEF-00001230 to DEF- 00001231; DEF-00002998 to DEF-00003038 to DEF- 00003237; DEF 000033 1 5 to DEF-00003792 to DEF - 00003975]; c. NAP Meeting Minutes and Log of changes, e-mails related to the to DEF-00002653 to DEF -00002666; DEF-00003239 to DEF-00003301 to DEF-00003 308 to d. Drafts of USCIS Implementation of Final TECS Check Before Granting Lawful Permanent Resident Status or Administering the Oath of Allegiance to Approved Naturalization Applicants 00001272 to DEF-00001276 to DEF- 00001280 to DEF-00001284 to e. USCIS PM-602-0063 Updated Instructions for the Handling TECS B10 Record to f. Drafts of USCIS PM-602-0063 Updated Instructions for the Handling TECS B10 Record to DEF-00001222 to DEF -00001226; DEF-00001315 to DEF -00001 3 1 g. CARRP policy and operational guidance documents listed in paragraph 4f through to DEF-00000060 to DEF - 00000063; DEF-00000191 to DEF-00005029 to AFFIDAVIT OF MATTHEW D. EMRICH - 6 (2: Case Document 119-2 Filed 02/20/18 Page 8 of 22 00000535; DEF-00000984 to DEF -00001074 to DEF- 00001082; DEF -00001095 to Draft of Case Assessment, Prioritization, and Tracking (CAPT) of Con?rmed National Security Cases; Draft of USCIS Memorandum Abbreviated CARRP Handling for DACA Cases with National Security Concerns to DEF- 00001234]; Drafts of a CARRP policy (intended to rescind, update, and consolidate all USCIS CARRP policy and operational guidance documents listed in paragraph 4f through 11) to DEF -00000485; DEF- 00000536 to DEF-00000596 to DEF - 00000617 to DEF -00000983; DEF-00002951 to 00002822 to DEF-00002889 to DEF -00002906; DEF - 00002910 to DEF -00002933 to Drafts of a CARRP operational guidance (intended to rescind, update, and consolidate all USCIS CARRP policy and operational guidance documents listed in paragraph 4f through n) to DEF - 00000346; DEF-00000347 to DEF-00000554 to DEF- 00000595; DEF-00002815 to DEF-00002668 to DEF- 00002738; DEF-00002739 to Brie?ng and summary documents on the draft CARRP policy and operational guidance (intended to rescind, update, and consolidate all USCIS CARRP policy and operational document listed in paragraph 4f AFFIDAVIT OF MATTHEW D. EMRICH - 7 (2: l7-cv-00094-RAJ) pCase Document 119-2 Filed 02/20/18 Page 9 of 22 through n) to DEF-00000486 to DEF - 00000490; DEF-00001371 to DEF-00002876 to DEF- 00002879; DEF-0002907 to DEF-00002929 to DEF- 00002929]; CARRP WG Notes and Meeting Minutes to DEF- 00000185; DEF -000001 87 to DEF-00000211 to DEF- 00000275; DEF-00000491 to DEF-00001069 to DEF- 00001073]; Summary of Case Prioritization Intelligence Assessment Procedures to DEF-00002885 to CARRP Training Aids (Studies in National Security, articulable link webinars) to DEF-00000186 to DEF- 00000186; DEF-00001374 to DEF-00004401 to DEF- 00004404; DEF-00004120 to DEF-00004407 to DEF - 00004480]; CARRP independent study course to USCIS FDNS IBIS Standard Operating Procedure to USCIS Operational Guidance The Withholding of Adjudication (Abeyance) Regulation Contained at 8 C.F.R. (October 30, 2013) to USCIS PM-602-0058 Revised Guidance for Accessing National Crime Information Center - Interstate Indenti?cation Index (NCIC Data AFFIDAVIT OF MATTHEW D. EMRICH - 8 Case Document 119-2 Filed 02/20/18 Page 10 of 22 (March 20, 2012) to DEF-00003 884; DEF-00004483 to DEF ~00004485]; List of changes to USCIS PM-602-0058 Revised Guidance for Accessing National Crime Information Center - Interstate Indenti?cation Index (NCIC Data (March 20, 2012) to DEF -00003976 to DEF -00003984]; Summary of Request for Assistance Procedures -00000001 to DEF- 00000006]; Organization Charts of the National Security Branch, Fraud Detection and National Security Directorate to DEF- 00004919 to USCIS Operational Guidance Resolving Letterhead Memorandum that Reference the Treasury Financial Crimes Enforcment Network to Drafts of USCIS Operational Guidance Resolving Letterhead Memorandum that Reference the Treasury Financial Crimes Enforcment Network (F -00001269 to DEF-00003042 to USCIS FDNS-DS Standard Operating Procedure to 00001249]; USCIS National Bene?ts Center Standard Operating Procedure for CARRP Referrals to AFFIDAVIT OF MATTHEW D. EMRICH - 9 (2: I NN MN I?l u?a v?I r?t r?I v?I Case Document 119-2 Filed 02/20/18 Page 11 of 22 aa. bb. CC. dd. 66. ff. gg. ii. Screening Lexicon to DEF-00001320 to DEF-00004064 to USCIS System Generated Noti?cation (SGN) Operational Guidance and Standard Operating Procedures (SOP) to Drafts of and Comment Matrix on Drafts of USCIS System Generated Notice Operation Guidance and Rule 220 Multiple Identities Standard Operating Procedures to DEF-00001337 to E-mails about CBP Vetting to DEF- 00003297 to Memorandum of Understanding Between Customs and Border Protection and US. Citizenship and Immigration Services for the use of Treasury Enforcement Communications Systems (TECS) to DEF - 00003994]; FDNS Brie?ng Paper Vetting KST to USCIS FDNS and FOD FDNS Operations Branch Evaluation of the Utility of [Redacted]Checks for Naturalization Applications (April 23, 2012) to USCIS FDNS NSD Evaluation of the Utility of [Redacted] Check for Known or Suspected Terrorist (KST) and Cases (March 5, 2012) -0000401 0 to Documents related to TECS Record Creation -00003045 to DEF - 00003409; DEF-00003250 to DEF-00003253 to DEF- OF MATTHEW D. EMRICH - lO Case Document 119-2 Filed 02/20/18 Page 12 of 22 00003269; DEF-00003273 to DEF -00004045 to DEF- 00004063]; jj. USCIS Vetting/Screening Requirement Matrix to DEF- 00004033]; kk. USCIS DNS NSD Presentation Enhanced Information Sharing with Law Enforcement (draft) to ll. USCIS Screening Matrix to mm. CAB ECN Site Update Page -00004481 to nn. CPIA ECN Tracking Work?ow to and, 00. E-mail about Name Checks for Applicants to DEF- 00003296]; 10. I have recently reviewed the withheld documents listed above in paragraphs 8 and 9, with the following exception. I have recently viewed a version of the draft CARRP policy and operational guidance documents listed in paragraphs aware that in this present litigation the parties have entered into a Stipulated Protective Order, ECF No. 85, and I have reviewed the terms of this Stipulated Protective Order. For the reasons mentioned in the below paragraphs, public disclosure of the information withheld would pose a risk to national security or public safety. Because these documents apply to ongoing and future vetting and adjudication of immigration bene?t applications, even disclosure under a protective order would not mitigate the risk because the withheld privileged information would be provided to third parties outside of the federal government. AFFIDAVIT OF MATTHEW D. EMRICH - ll Case Document 119-2 Filed 02/20/18 Page 13 of 22 12. I submit this declaration as the formal assertion invoking the Law Enforcement Privilege for the information contained in these withheld documents. The information withheld from each of these documents relates to any of the following: It identi?es USCIS internal case handling procedures for the adjudication of an immigration bene?t application, to include vetting methods used to evaluate an applicant?s eligibility for the immigration bene?t, which might reveal the methods and techniques used to uncover or elicit information that relates to eligibility for an immigration bene?t. It identi?es sensitive information about law enforcement checks. USCIS has previously determined the extent to which it can release to the public information about the types of law enforcement checks that it performs, and has released that information as appropriate. The withheld portions of the documents here contain information USCIS has determined it cannot reveal, because it relates to classi?ed processes, discloses information about third party law enforcement or intelligence partners, or discloses the types of sensitive information that certain law enforcement checks may contain. Disclosure of this information might reveal sensitive internal law enforcement case handling procedures and if disclosed will risk circumvention or evasion of the law. It contains record identi?cation numbers and similar codes, information identifying law enforcement agencies, and narrative text, the disclosure of which might reveal sensitive law enforcement investigative information, techniques, and procedures. Documents, such as meeting minutes from working groups, may disclose shortcomings or vulnerabilities in vetting that require further action to resolve and address, the disclosure of which might reveal sensitive law enforcement investigative information, AFFIDAVIT OF MATTHEW D. EMRICH - I2 2: l7-cv-00094-RAJ) Case Document 119-2 Filed 02/20/18 Page 14 of 22 techniques, and procedures. Documents also discuss consideration of investigatory tools or techniques that have been considered, but not implemented. Disclosure of techniques that may be employed in the future might reveal sensitive law enforcement investigative information, techniques, and procedures that could be used at a future time. 13. Disclosure of the withheld information would cause a risk to national security and public safety for several reasons. First, disclosure of information that reveals the procedures used by USCIS to vet and to adjudicate immigration bene?t applications would impair the effectiveness of processes and procedures to determine an applicant?s eligibility for the immigration bene?t sought. Disclosure of this information would provide an applicant for an immigration bene?t a roadmap to evade such processes and procedures and conceal information that would otherwise make the applicant ineligible for the immigration bene?t sought. 14. Further, the withheld portions of the documents describe who USCIS vets, how they are vetted, how to analyze certain sensitive data, and contain information about sensitive data systems of law enforcement partners that USCIS does not own. Disclosure of information on how USCIS identi?es, investigates and combats security threats could create programmatic vulnerabilities and allow potential threats to adjust, adapt and better avoid detection. 15. Disclosure of information that USCIS does not own, that originates with other law enforcement or intelligence agencies, could impair ability to share and collect necessary information to determine if an individual is eligible for an immigration bene?t, and could impact other law enforcement or intelligence agencies? missions or operations. USCIS is obligated to protect information that it obtains that is owned by a third-party agency. Disclosure could harm the collaborative relationship between USCIS and the law enforcement partners, which could degrade ability to collect information it needs to prevent potential bad AFFIDAVIT OF MATTHEW D. EMRICH - l3 (2: y?t Case Document 119-2 Filed 02/20/18 Page 15 of 22 actors from in?ltrating the immigration system, despite not being eligible for an immigration bene?t. 16. Signi?cantly, programmatic vulnerabilities such as those described above, not only create a risk to national security, because bad actors may seek to exploit the immigration system, they also could pose a risk to the safety of of?cers who operate in the ?eld. Bad actors who are aware that USCIS may be employing certain tactics to uncover information relevant to their eligibility for an immigration bene?t may seek to harm an of?cer rather than have certain information exposed. 17. In addition to the overarching risks that disclosure of this information would pose, disclosure would likely affect the actions that bad actors may take when applying for immigration bene?ts. The documents at issue here also do not relate solely to naturalization and adjustment of status applications, but encompass policies for a wide range of immigrant bene?t applications. 18. Many USCIS immigration bene?t applications contain documentation about an alien?s background, including his or her activities or associations that could pose a national security or public safety concern. Such immigration bene?t applications include, but are not limited to: I-485, Application to Register Permanent Residence or Adjust Status; 89, Application for Asylum and Withholding of Removal; I-590, Registration for Classi?cation as a Refugee; I-698, Application to Adjust Status From Temporary to Permanent Resident; 1-817, Application for Family Unity Bene?ts; I-821, Application for Temporary Protected Status; 881, Application for Suspension of Deportation or Special Rule Cancellation of Removal; 1-914, Application for Nonimmigrant Status; 1-918, Application for Nonimmigrant Status; I-539, Application to Extend/Change Nonimmigrant Status; and N-400, Application for Naturalization. AFFIDAVIT OF MATTHEW D. EMRICH - l4 Case Document 119-2 Filed 02/20/18 Page 16 of 22 19. In determining whether an applicant should be granted an immigration bene?t, USCIS adjudicators must determine that an individual is eligible for the bene?t at issue, and consider all of the grounds of eligibility, such as admissibility, under the INA and other provisions of law, as relevant to the particular adjudication. USCIS adjudicators must review the background and statements made by applicants, including but not limited to the individual?s criminal history, travel history, military training, and associations in order to determine whether the individual is eligible for the bene?t being considered. 20. For many types of immigration bene?ts, applicants must provide USCIS with substantial information about their background, including information about their past activities, information about any groups with which they have engaged in activities or have had associations, including political and/or militia organizations, and other personal history information. Information disclosed by applicants or otherwise discovered by government of?cials require vetting if it is determined the applicant?s activity could affect his or her removability or eligibility for the immigration bene?t, under national security or terrorist-related inadmissibility or deportability grounds. The documents withheld in this case are essential to the proper vetting of applications for immigration bene?ts and contain sensitive internal information about the vetting process for applicants whom adjudicators have determined pose a national security or public safety risk. As discussed earlier, public disclosure of the withheld portions of these documents could provide aliens with a roadmap into the techniques USCIS uses to uncover information that an individual may wish to hide, and the techniques used to elicit information. Individuals who are aware of the techniques that USCIS uses to collect, record, and elicit information related to eligibility for an immigration bene?t may more successfully employ evasion tactics to make it AFFIDAVIT OF MATTHEW D. EMRICH - l5 (2: l7-cv-00094-RAJ) u?t v?t v?I u?t Case Document 119-2 Filed 02/20/18 Page 17 of 22 more dif?cult for USCIS to discover information needed to adjudicate the immigration bene?t application. Individuals could also share these techniques with terrorist organizations and other bad actors who wish to harm the United States, so that individuals af?liated with such organizations could seek to improperly obtain immigration bene?ts. 22. In other circumstances, indicators of an applicant?s encounters, activities, or associations that provide an articulable link to a national security concern are discovered through background checks that contain information obtained by and/or owned by a third party law enforcement or intelligence agency. If the sensitive details about the information-sharing process are revealed, individuals will gain insight into the coordination and information sharing processes. This will both undermine adjudication process and possibly affect an ongoing criminal or national security investigation. 23. Public disclosure of the withheld portions of documents in this case that relate to coordination and interaction with third-party law enforcement or intelligence agencies could provide applicants with information to discover when classi?ed information likely exists, or gain insight into whether that individual is the subject of an investigation by a third-party law enforcement or intelligence agency. In addition, the documents would provide individuals with information that could allow them to determine if they are likely under investigation by another law enforcement of intelligence agency. Individuals who become aware of information could gain insight that would allow them to disrupt or circumvent a third party criminal or national security investigation. USCIS would be damaged by the disclosure of such information because it could jeopardize its relationships with third party agencies and undermine its ability to collect relevant information from third-party agencies related to eligibility for immigration bene?ts. Without access to relevant information, USCIS will likely grant bene?ts to individuals who are AFFIDAVIT OF MATTHEW D. EMRICH - l6 (2: Case Document 119-2 Filed 02/20/18 Page 18 of 22 not only ineligible for the bene?t but who would seek to use the bene?ts of US. citizenship or permanent residence to harm the United States, which would pose a risk to national security and public safety. 24. Finally, an alien who becomes aware of internal procedures for vetting cases with a national security or public safety concern, will have a strong incentive to falsify or misrepresent information, such as encounters, activities, or associations that he or she may have that pose a national security or public safety concern. It is reasonable to expect that this incentive will in?uence the testimony and representations the applicant makes to a USCIS adjudicator. Thus, any such concealment or misrepresentation on the part of such aliens would obstruct enforcement, implementation, and application of the law that was enacted to bar certain applicants from eligibility for bene?ts, and bar the admission of, certain aliens into the United States, because USCIS adjudicators will be unable to fully evaluate the existence of any fraud, national security, and public safety concerns. 25. As the following examples, drawn from public documents, show, applicants for immigration bene?ts have sought to hide their activities, associations, and af?liations in order to circumvent the INA: On June 18, 2009, USCIS denied Ibrahim Olayan?s Application for Naturalization, ?nding that he fraudulently obtained permanent resident status by concealing his past activities with a terrorist organization. Mr. Olayan sought de novo review of decision in the US. District Court for the Southern District of Indiana, which af?rmed determination, ?nding that ?Mr. Olayan?s misrepresentation on Form 1-485 was material because it attempted to mask his membership in a Tier organization - that is, ?an undesignated group AFFIDAVIT OF MATTHEW D. EMRICH - 17 (2: uAFFIDAVIT OF MATTHEW D. EMRICH - l8 (2: I Case Document 119-2 Filed 02/20/18 Page 19 of 22 of two or more individuals? that engages in terrorist activity as de?ned in 8 U.S.C. See Olayan v. Holder, 833 F. Supp. 2d 1052, 1060 (SD. Ind. 2011). On March 6, 2008, the US. Court of Appeals for the Seventh Circuit af?rmed an immigration judge?s order that Mohammad Azam Hussain be removed for committing fraud and for material support of terrorism. The Seventh Circuit af?rmed the removal order that found that Mr. Hussain had submitted a fraudulent Application for Naturalization that failed to disclose his past associations with the Mohajir Qaumi Movement-Haqiqi Mr. Hussain?s activities with the MQM-H were determined to constitute terrorist activities, and thus he was ineligible for admission to the United States. See Hussain v. Mukasey, 518 F.3d 534, 537-38 (7th Cir. 2008). On April 27, 2015, Wissam Allouche was sentenced to ?ve years in federal prison for knowingly lying to USCIS of?cers on his naturalization application about his relationship with the Amal militia. Testimony during trial revealed that Allouche, who migrated to the United States after marrying his wife, a US. Army soldier, failed to disclose to USCIS authorities in January 2009 the fact that, in the 19803, he was a member of the Amal militia, a terrorist organization. Evidence presented during trial also showed that in 2009, Allouche unlawfully obtained US. citizenship by claiming that he was living with his estranged wife when, in fact, they were in divorce proceedings. See US. v. Allouche, No. (W.D. Tex.). Case Document 119-2 Filed 02/20/18 Page 20 of 22 On March 12, 2015, Rasmieh Yousef Odeh was sentenced to serve 18 months in prison for her November 10, 2014 conviction on immigration fraud for failing to disclose that she had been convicted of participating in a terrorist bombing with the Popular Front for the Liberation of Palestine a designated foreign terrorist organization. According to the indictment, Odeh was convicted in Israel for her role in the 1969 bombings of a supermarket and the British Consulate in Jerusalem, which were carried out on behalf of the PFLP. Odeh and others placed multiple bombs at the British Consulate and in a supermarket. One of the bombs placed at the supermarket detonated, killing two people and injuring others. A bomb placed at the consulate caused structural damage to the facility. Odeh was sentenced by Israeli military authorities to life imprisonment, but was released after 10 years as part of a prisoner exchange. She then returned to the West Bank. The evidence presented at trial established that, in 1995, Odeh immigrated to the United States and was naturalized in 2004. In her immigration documents ?led in the United States, Odeh failed to disclose her arrest, conviction, and imprisonment overseas, which were material facts for the US. government in determining whether to grant her citizenship. See US. v. Odeh, No. 2: 13-cr? 20772-GAD- DRG (ED. Mich.). On February 5, 2015, Abdinassir Mohamud Ibrahim was sentenced to 15 years in federal prison for conspiring to provide material support to al-Shabaab, a designated foreign terrorist organization, and for making a false statement in an immigration matter. Ibrahim knowingly lied on his application for naturalization and he previously lied on his request for refugee status, falsely claiming that he AFFIDAVIT OF MATTHEW D. EMRICH - l9 Case Document 119-2 Filed 02/20/18 Page member of the minority Awer clan in Somalia and subject to persecution by the majority Hawiye clan. However, Ibrahim was actually a member of the Hawiye clan and not subject to persecution. Ibrahim also admitted he had lied on his naturalization application by having previously lied on his refugee application, falsely claiming that he had not provided material support to a terrorist group, when he had in fact provided material support in the form of cash to an al- Shabaab member. Ibrahim pled guilty to both counts of the information on July 31, 2014. Ibrahim admitted that, from about May 18, 2010, to about Jan. 31, 2014, he knowingly conspired to provide material support and resources, speci?cally sending emails enlisting support for al-Shabaab and making a cash payment to a known member of al-Shabaab for the bene?t of the organization. Ibrahim also pled guilty to making a false statement in an immigration matter. See US. v. Ibrahim, No. (W.D. Tex.). These examples illustrate that individuals who are ineligible for immigration bene?ts may seek to undermine the integrity of the immigration system by misreprenting or failing to disclose information. If individuals with nefarious intent were to obtain access to the privileged documents that are withheld in this litigation, individuals would have far greater tools at their disposal to avoid detection and perpetrate fraud or deception. In particular, the individuals would become aware of the methods that USCIS uses to obtain information that an individual seeks to hide, and techniques it uses to collect information needed to uncover attempts to misrepresent information or withhold it. This could cripple ability to properly vet individuals to determine their eligibility for immigration bene?ts, undermine the integrity of the AFFIDAVIT OF MATTHEW D. EMRICH - 20 (2: l7-cv-00094-RAJ) I Case Document 119-2 Filed 02/20/18 Page 22 of 22 immigration system. and, if individuals who wish to harm the United States obtain greater rights and abilities through their immigration status, threaten the national security of the United States. 27. Based upon my professional experience, I have concluded that any disclosure of the withheld information from these documents, which have been appropriately withheld pursuant to the law enforcement privilege, would undermine the integrity of the US. immigration system, facilitate fraud, and pose significant potential to harm national security and public safety. Public disclosure of the withheld information could result in more fraudulent applications for immigration bene?ts by individuals who pose national security risks to the United States and more sophisticated and targeted fraud schemes in such applications. Both the increased numbers and increasingly sophisticated schemes will impair the ability of USCIS officers to identify and address immigration fraud and national security risks. The aforementioned, real-world case examples listed in paragraph 25 amply illustrate the risk ofharm posed by immigration fraud. The withheld information is used by USCIS to mitigate that risk, and thus disclosure could impair efforts in that regard. 28. Based on the reasons set forth above. I invoke the law enforcement privilege for the requested information which the Government seeks to keep withheld. I declare under penalty of perjury that the foregoing is true and correct. Executed this day of February, 2018 at Washington, DC. Matthew D. Emrich Associate Director, FDNS US. Citizenship and Immigration Services Washington, DC. AFFIDAVIT MATTI lliW D. - 2 (2: