Case 2:17-cv-00094-RAJ Document 126 Filed 03/01/18 Page 1 of 11 THE HONORABLE RICHARD A. JONES 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 ABDIQAFAR WAGAFE, et al., Plaintiffs, 12 13 14 15 CASE NO. C17-0094-RAJ DEFENDANTS’ MOTION FOR LIMITED PROTECTIVE ORDER v. DONALD TRUMP, et al., Defendants. Noting Date: March 9, 2018 16 17 On October 19, 2017, the Court issued an order concerning the discoverability of the 18 identities of class members. Dkt. No. 98. Noting the sensitivity of the information, the Court 19 suggested that the parties “could supplement the protective order . . . to assuage any remaining 20 concerns on the part of the government.” Id. at 4. The Court subsequently denied the 21 Defendants’ motion for reconsideration, noting that a “robust protective order” was sufficient 22 to guard against misuse of official information. Dkt. No. 102 at 3. 23 Defendants have conducted the searches directed by the Court to create a list of class 24 members (though, consistent with the Court’s order, see Dkt. No. 98 at 3, they have not 25 conducted the expensive and time-consuming steps required to manually cross-check and 26 verify the accuracy of all of the information in the databases from which the class list was 27 compiled with the individuals’ Alien Files). The class list is now ready for disclosure to 28 Plaintiffs’ counsel in discovery. DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 1 UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, Ben Franklin Station Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 126 Filed 03/01/18 Page 2 of 11 As explained in the accompanying declarations from officials at United States 1 2 Citizenship and Immigration Services (“USCIS”), Immigration and Customs Enforcement 3 (“ICE”), and the Federal Bureau of Investigation (“FBI”), the information in the class list that 4 identifies individuals (i.e. their names, alien file numbers (“A numbers”) and application filing 5 dates) is highly sensitive, non-public, “for official use only” information. The disclosure of this 6 information to those individuals or the public at-large could, in the informed opinion of the 7 declarants, damage national security and/or intelligence investigations and the proper 8 adjudication of the benefit the individual is seeking. Consequently, Defendants now 9 respectfully move this honorable Court to supplement the existing protective order to limit 10 disclosure of the names, A numbers, and application filing dates of the certified class members 11 solely to Plaintiffs’ attorneys of record, any experts retained by Plaintiffs, and the Court and 12 court personnel. Further, Defendants ask that the Court require Plaintiffs’ counsel take certain 13 security measures identified below in their handling of that information, and prohibit Plaintiffs’ 14 counsel from contacting unnamed plaintiffs or confirming to an individual that contacts 15 Plaintiffs’ counsel that he or she is a member of either of the two certified classes. STANDARD 16 A district court has broad power to fashion protective orders, and may do so upon a 17 18 showing of good cause. See Fed. R. Civ. P. 26(c) (requiring only good cause to issue protective 19 order); Phillips v. General Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002). The Court must 20 identify and discuss the factors it considers, and the party asserting good cause must show that 21 specific prejudice or harm would result from the disclosure of each category of information it 22 seeks to protect. See Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 23 2003). ARGUMENT 24 25 “Courts commonly issue protective orders limiting access to sensitive information to 26 counsel and their experts.” Nutratech, Inc. v. Syntech (SSPF) Intern, Inc., 242 F.R.D. 552, 555 27 (C.D. Cal. 2007). In the unique context of this litigation, the names, A numbers, and 28 application filing dates of class members are sensitive, and good cause exists to protect them DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 2 UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, Ben Franklin Station Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 126 Filed 03/01/18 Page 3 of 11 1 from disclosure to those individuals and the public at-large. Names and A-numbers of the class 2 members of the two certified classes would allow one to determine whether a specific 3 individual’s immigration benefit application has been processed pursuant to the CARRP 4 policy. The application filing date, together with other biographic information that would be 5 provided on the class list, would also be sufficient to allow an individual to identify him or 6 herself. This fact would, if disclosed to the applicant, alert the applicant that an articulable link 7 exists between that individual and one or more specific national security-related grounds of 8 inadmissibility or removability. 9 A. Disclosure Risks Prejudice to National Security and Intelligence Interests 10 Notwithstanding the existing protective order, Plaintiffs’ counsel intends to inform 11 unnamed class members of their status in CARRP. See Dkt. No. 91 at 4-5. As detailed in the 12 accompanying declarations, Exhibits (“Ex.”) A through C, that disclosure would risk damage 13 to national security and intelligence interests and investigations, and the proper adjudication of 14 the benefit the individual is seeking. 15 In USCIS’s experience, it is difficult to gather evidence if an applicant prematurely 16 becomes aware of an investigation. Declaration of Matthew D. Emrich, Ex. A, at ¶¶ 26, 27. 17 That is because the individual may change his or her behavior, coordinate with others to 18 prevent USCIS from collecting statements from other relevant persons, stop certain behaviors, 19 or intentionally provide misleading information. Id. at ¶ 27. As a result, USCIS’s ability to 20 ensure that only eligible applicants are afforded immigration benefits is degraded, and some 21 persons who might, in fact, be ineligible for the benefit sought, could obtain benefits to which 22 they would not be entitled. Id. 23 Similarly, disclosure that an applicant is (or was) subject to CARRP, and therefore has 24 (or had) an articulable link to a national security ground of inadmissibility or removability, 25 would allow the applicant to infer that he or she may be subject to investigative scrutiny by law 26 enforcement. Id. at ¶ 28. For example, an applicant might infer that USCIS received derogatory 27 information from the FBI during the name check process. Declaration of David Eisenreich, Ex. 28 B, at ¶ 32. If an unnamed class member is a bad actor, the individual is likely aware of the bad DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 3 UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, Ben Franklin Station Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 126 Filed 03/01/18 Page 4 of 11 1 acts in which he or she is involved. Notification that he or she has been subject to CARRP 2 would then certainly lead the individual to suspect or believe that those bad acts are being 3 investigated. That conclusion, in turn, could disrupt an individual investigation, or, if the 4 individual is the subject of an investigation involving a large number of people, that individual 5 could report back to others in the group that their activities are likely being investigated. In this 6 way, large scaled investigations could also be interrupted and adversely affected. Ex. A at ¶ 28; 7 Ex. B at ¶ 31-32; Declaration of Tatum King, Ex. C, at ¶ 5. An applicant’s ability to reasonably infer that he or she is of national security or law 8 9 enforcement investigative interest to the U.S. government, including whether an individual is 10 or has been the subject of an FBI counterterrorism or counterintelligence investigation or of 11 other intelligence interest, could harm national security and seriously impair the ability of 12 government agencies to conduct future investigations. Ex. A at ¶ 27; Ex. B at ¶ 31-32; Ex. C at 13 ¶ 5. 14 B. The Existing Protective Order Is Insufficient To Protect Against Disclosure 15 Although there is an existing protective order in place, it is insufficient to adequately 16 17 guard against the prejudice to the Government and the public identified above. On August 15, 2017, almost two months after the Court certified two nationwide 18 classes, the Parties submitted a joint motion for entry of a stipulated protective order. Dkt. No. 19 84. The Court entered the stipulated protective order three days later. Dkt. No. 86. Under that 20 stipulated protective order, Plaintiffs agreed to terms that prohibit them from divulging to 21 unnamed class members that they are, in fact, class members in this litigation, or that their 22 immigration benefit applications have been processed pursuant to the CARRP policy. See Dkt. 23 No. 86 at ¶ 4.2. Although unnamed class members are not authorized to receive confidential 24 information under the Stipulated Protective Order, Dkt. No. 86, Plaintiffs’ have indicated their 25 intention to inform unnamed class members whether they are included on the class list. 26 Further, the current protective order would permit the named Plaintiffs to receive the class list, 27 Plaintiffs’ counsel to reveal to some unnamed class members the fact of their inclusion on the 28 list by means of deposing them, and could also allow Plaintiffs’ counsel to comply with the DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 4 UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, Ben Franklin Station Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 126 Filed 03/01/18 Page 5 of 11 1 letter of the order while violating its spirit by approaching unnamed class members and 2 communicating sufficient information to them to implicitly communicate to those individuals 3 that they are, in fact, unnamed class members. Defendants’ proposed order avoids these 4 difficulties by drawing clearer lines than was possible for a protective order that applies 5 generally across all discovery. Under the current stipulated protective order, certain information is considered 6 7 “Confidential Information.” Confidential Information includes, inter alia, A numbers; “any 8 other information that, either alone or in association with other related information[] would 9 allow the identification of the particular individual(s) to whom the information relates” 10 (including names); sensitive but unclassified information, including information deemed 11 “limited official use” and “for official use only”; any information complied for law 12 enforcement purposes 1; and personally identifiable information. Dkt. No. 86 at ¶ 2(a), (b), (k), 13 (l), (p). Confidential Information “including all information derived therefrom, shall be 14 restricted to use in this litigation . . . and shall not be used by anyone subject to the terms of 15 this agreement, for any purpose outside of this litigation or any other proceeding between the 16 parties.” Id. at 6 ¶4.3. Disclosure of confidential information is limited, as relevant here, to: 17 • “named Plaintiffs”; 18 • “Plaintiffs’ counsel in this action and any support staff of such counsel assisting in this action with an appropriate need to know”; 19 20 • “experts and consultants to whom disclosure is reasonably necessary for this litigation”; 21 • “any other person mutually authorized by both parties’ counsel”; 22 • “the Court, court personnel, and court reporters, and their staff”; 23 • “copy or imaging or data processing services retained by counsel to assist in this litigation”; 24 • 25 “during their depositions, witnesses in this action to whom disclosure is reasonably necessary”; or 26 27 28 1 This category presumably concerns any law enforcement information that may not be withheld from disclosure as privileged. DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 5 UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, Ben Franklin Station Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 126 Filed 03/01/18 Page 6 of 11 1 • “the author or recipient of a document containing Confidential Information or a 2 custodian or other person who otherwise possessed or knew the Confidential 3 Information”. 4 Id. at 5-6 ¶ 4.2(a)-(i). Notably absent from this list is unnamed class members. Thus, unless 5 they are provided access during a deposition under paragraph 4.2(h), the fact that an unnamed 6 class members is included on the list of class members is Confidential Information that cannot 7 be disclosed to the class member. 8 Although this provides some measure of protection, there is nothing in the current 9 protective order that would prevent an attorney, or the organizations for which they work, from 10 stopping just short of this line while doing the same damage. For example, Plaintiffs’ attorneys 11 or agents could seek out class members and provide them factual information on this litigation, 12 explain the class definitions, ask the individuals to contact them in order to learn more—but 13 stop short of actually saying that the individual is a class member and demur if asked. Even 14 without being directly told, the applicant—having full knowledge of his or her own 15 immigration benefit application—would reasonably surmise that he or she is a class member. 16 Plaintiffs would have arguably complied with the letter of the current protective order, while 17 violating its spirit and occasioning the very same harm that would occur as if the individual 18 were directly told that he or she is a class member. Thus, protection beyond the current 19 protective order is necessary to prevent unnamed class members from learning that the 20 Government is considering whether they are ineligible for a benefit under a national-security 21 related ground of inadmissibility and whether they are the subject of a current law enforcement 22 investigation, as well as to prevent the named plaintiffs from learning the identities of others 23 deemed to have an articulable link to a national security ground of inadmissibility. 24 C. A “For Attorney Eyes Only” Provision Is Appropriate and Necessary 25 Courts have frequently employed “For Attorneys’ Eyes Only” provisions in patent 26 disputes and to protect trade secrets. See Louisiana Pac. Corp. v. Money Marker 1 Institutional 27 Inv. Dealer, 285 F.R.D. 481, 490 (N.D. Cal. 2012) (upholding For Attorney Eyes Only 28 designation over investment documents “[e]ven though LP and DBSI are not direct DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 6 UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, Ben Franklin Station Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 126 Filed 03/01/18 Page 7 of 11 1 competitors and do not operate in the same industry”); Matrix, Inc. v. Midthrust Imports, Inc., 2 No. 13-cv-1278, 2014 WL 12589634, *2 (C.D. Cal. Mar. 7, 2018). The need for nondisclosure 3 in this context is substantially greater, as disclosure is likely to risk the ability of USCIS to 4 properly adjudicate immigration benefit applications, or risk important national security and/or 5 intelligence investigations by confirming for “bad actors” that the government has an 6 articulable link between them and a national security ground of inadmissibility or removability. By (a) limiting disclosure of the names, A numbers, and application filing dates solely 7 8 to Plaintiffs’ attorneys of record; (b) requiring Plaintiffs’ attorneys to maintain that information 9 either in a locked filing cabinet (if held in paper copy) or in a password-protected file (if held 10 electronically); (c) requiring Plaintiffs’ attorneys not to transmit that information via electronic 11 mail or cloud-based sharing unless the method of transmission employs point-to-point 12 encryption, or other similar encrypted transmission, and (d) prohibiting Plaintiffs’ attorneys 13 from contacting the class members, Plaintiffs’ counsel will be able to view all of the 14 information they have sought, while preventing the harm the Government has identified. This 15 is an appropriate and necessary balance to permit Plaintiffs’ counsel access to this information, 16 while simultaneously protecting the government’s legitimate concerns about potential damage 17 to important national security and law enforcement interests. 2 CONCLUSION 18 For the foregoing reasons, as well as those described in the accompanying declarations, 19 20 exhibits A through C, Defendants respectfully move the Court to issue a protective order that 21 2 22 23 24 25 26 27 28 To the extent Plaintiffs’ counsel subsequently contend that they need various items of information about particular unnamed class members to develop evidence for use in their case, the parties can meet and confer over ways in which the Defendants might be able to provide Plaintiffs with such information while simultaneously protecting against the above described dangers to important governmental interests. To the extent Plaintiffs contend they need to be able to tell an individual who contacts them asking if he or she is in one of the classes (so that the individual can determine whether to file a separate lawsuit), they are mistaken. Insofar as an individual has different legal claims than those alleged in the Second Amended Complaint, this lawsuit would not advance those distinct claims, regardless of whether the individual is in one of the classes. Insofar as an individual has the same legal claims as those alleged in this case and is in one of the classes, that individual will benefit from any ruling in Plaintiffs’ favor in this case and need not file a separate lawsuit. And, finally, insofar as an individual has the same legal claims as those alleged in his case, but is not in one of the classes—which means the individual’s application is not pending over six months and subject to CARRP—that individual has no standing to bring such claims. Consequently, there is no reason a curious individual needs to know whether he or she is in one of the certified classes—classes which do not require notice to class members, see Fed. R. Civ. P. 23(c)(2)(A)—to determine whether to bring a separate lawsuit. DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 7 UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, Ben Franklin Station Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 126 Filed 03/01/18 Page 8 of 11 1 (a) limits disclosure of the names, A numbers, and application filing dates of the unnamed class 2 members solely to Plaintiffs’ attorneys of record; (b) requires Plaintiffs’ attorneys to maintain 3 that information either in a locked filing cabinet (if held in paper copy) or in a password- 4 protected file (if held electronically); (c) requires Plaintiffs’ attorneys not to transmit that 5 information via electronic mail or cloud-based sharing unless the method of transmission 6 employs point-to-point encryption, or other similar encrypted transmission; and (d) prohibits 7 Plaintiffs’ attorneys, or any person acting on their behalf, from contacting unnamed plaintiff 8 members of the Naturalization Class and Adjustment-of-Status Class for any purpose without 9 prior order of this Court. 10 11 12 13 14 15 16 17 Dated: March 1, 2018 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General /s/ Edward S. White EDWARD S. WHITE Senior Counsel for National Security AARON R. PETTY JOSEPH F. CARILLI, JR. Counsels for National Security 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 Tel: (202) 616-9131 Fax: (202) 305-7000 Email: edward.s.white@usdoj.gov WILLIAM C. PEACHEY Director, District Court Section TIMOTHY M. BELSAN Deputy Chief, National Security & Affirmative Litigation Unit 18 19 20 21 Attorneys for Defendants 22 23 24 25 26 27 28 DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 8 UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, Ben Franklin Station Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 126 Filed 03/01/18 Page 9 of 11 1 2 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that on March 1, 2018, I thoroughly discussed the substance of 3 this motion with counsel for Plaintiffs, and in good faith attempted to reach an accord to 4 eliminate the need for the motion. During that discussion, the parties agreed that we were at an 5 impasse over the relief requested in this motion. 6 /s/ Edward S. White EDWARD S. WHITE U.S. Department of Justice 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 1, 2018, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following CM/ECF participants: Harry H. Schneider, Jr., Esq. Nicholas P. Gellert, Esq. David A. Perez, Esq. Laura K. Hennessey, 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: LHennessey@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 Emily Chiang, Esq. DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 9 UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, Ben Franklin Station Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 126 Filed 03/01/18 Page 10 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 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. Sameer Ahmed, 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 Email: sahmed@aclusocal.org 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. American Immigration Council 100 Summer St., 23rd Fl. Boston, MA 02110 Tel: (857) 305-3600 Email: trealmuto@immcouncil.org Email: kmacleod-ball@immcouncil.org 20 21 22 23 24 25 26 27 Lee Gelernt, Esq. Hugh Handeyside, 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 28 DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 10 UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, Ben Franklin Station Washington, DC 20044 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 126 Filed 03/01/18 Page 11 of 11 s/ Edward S. White EDWARD S. WHITE U.S. Department of Justice 1 2 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 DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 11 UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, Ben Franklin Station Washington, DC 20044 (202) 616-9131 Case Document 126-1 Filed 03/01/18 Page 1 of 9 EXHIBIT A Case Document 126-1 Filed 03/01/18 Page 2 of 9 The Honorable Richard A. Jones UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ABDIQAFAR WAGAFE, et 1:71., No- 21? 7-CV-00094-RAJ Plaintiffs, DECLARATION OF MATTHEW D. EMRICH IN SUPPORT OF MOTION FOR PROTECTIVE ORDER DONALD TRUMP, er Defendants. 1. 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 have held this position since November 15. 2015. 2. As the head of DNS, I report directly to the Director and Deputy Director of USCIS. Prior to becoming Associate Director of FDNS, beginning in November 2012, I was the Deputy Associate Director of DNS. 1 ?rstjoined 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 NITIZI) STATES DEPARTMINF OF I ION or MAI I Iirw D. - 1 2 I 7-c\ -0009-l- RAJ) Ben rm??iigiin ass DC 20014 [202} 532-4 513 Case Document 126-1 Filed 03/01/18 Page 3 of 9 Chief of the DHS Threat Task Force and a Deputy Assistant Director of Immigration and Customs Enforcement Of?ce of Intelligence. 3. As the FDNS 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. 4. After consideration of information available to me in my capacity as USCIS Associate Director of the FDNS Directorate, the matters contained in this declaration are based upon my understanding of the case of Wagafe, et al., v. Trump, e! 01., Case No. now pending in the United States District Court for the Western District of Washington. How USCIS Identi?es Individuals as a National Security Concern 5. The Controlled Application Review and Resolution Process policy is a consistent approach to identify, process, and adjudicate applications and petitions for immigration bene?ts that involve national security concerns. There are four phases in CARRP: identifying the national security concern, internal vetting, external vetting, and adjudication. 6. A national security concern exists when an individual or organization has been determined to have an articulable link to prior, current, or planned involvement in, or association with, an activity, individual, or organization described in 8 U.S.C. (B), or (F) or 1227(a)(4)(A) or If there is an indicator of a national security concern, but USCIS determines that it does not relate to the individual or there is no articulable link between the individual and the national security concern, the application or petition is not subject to the CARRP policy. These provisions refer to the statutory inadmissibility and deportability grounds that relate to espionage. sabotage. trade violations, activities in opposition to or to control or overthrow the U.S. government, terrorism, and associations with terrorist organizations where the alien intends, while in the U.S. to be involved in activities that could endanger the U.S. UNITED STATE 55 JUSTICE DI ICLARA I ION or MATH It o. IMRICI-I - 2 (2: 7-cv-00094-RN um t-?mtm Sum no em as WadiIumDCZIm-t (202)532?3542 Case Document 126-1 Filed 03/01/18 Page 4 of 9 7. Although additional eligibility requirements must be met to be eligible for adjustment of status to that of a lawful permanent resident or to naturalize, the grounds above relate to national security, and when an articulable link to one of these grounds exists, the individual is subject to the CARRP policy. 8. Individuals who raise national security concerns are considered either known or suspected terrorists or 9. A KST is an individual who has been nominated and accepted for placement in the Terrorist Screening Database and is on the Terrorism Watchlist. Individuals who are placed into the TSDB are included in the TECS2 system with a certain code indicating that the individual is a KST. IO. All other individuals who raise national security concerns are considered non-KSTs. can be identi?ed in the following ways: 0 Information contained within TECS: 0 Information from an FBI name check; 0 Information from an FBI ?ngerprint check; 0 Information contained within other databases owned by the Department of Homeland Security (DHS), Department of State (DOS), or other agency; - Applicant-provided information, such as information on the benefit application, or applicant testimony; or 0 Any other manner in which USCIS is noti?ed or obtains information that an individual has an articulable link to a national security concern. II. The fact that there is information about a particular individual from any of these sources does not mean that the individual is subject to the CARRP policy. Rather. if the information contained within these sources provides an articulable link between that individual and a national security ground of inadmissibility or removal, then the 2 TECS is a multiagency effort with a central system that combines information from multiple agencies, databases, and system interfaces to compile data relating to national security risks and other issues. OI FICI Cnil Diusm ()iliee ?lming-1m? lmgaum or CLARA ?on or D. LMRICII -3 . WC as. intrusui?mm [in 868 W?mngC?Nm-I (1'03 532-154! Case Document 126-1 Filed 03/01/18 Page 5 of 9 individual would be identi?ed as a national security concern and subject to the CARRP policy. How the Class Members were Identi?ed as National Security Concerns 12. The composition of the classes certi?ed in this litigation is ?uid. Individuals may leave the class when their case is adjudicated, and new individuals may enter the class as their case becomes pending for six months. 13. Within the class, the reasons that an individual is subject to the CARRP policy are also ?uid. An individual may be added or removed from the TSDB, which affects whether the individual is a KST or non?KST. Certain investigations may also open or close. affecting which national security ground (if any) applies to a particular individual. 14. Any individual?s case may involve multiple pieces of information from various sources, including multiple background check hits, establishing an articulable link between the individual and a national security ground for inadmissibility or removal. 15. Even if an individual is identified as a national security concern, during additional phases of CARRP, such as internal and external vetting, USCIS may conclude from additional information that it receives that a particular individual is not a national security concern and should no longer be subject to the CARRP policy. Depending on how complex the information is and how much additional vetting is needed, the national security concern that was identified for an individual may be resolved in a matter of a few days or weeks. In other instances, additional time is needed to resolve the concern. l6. USCIS understands that individuals remain in the class even after the national security concern is resolved, and the case is no longer subject to the CARRP policy, as long as the individual was subject to the CARRP policy at some point after the class was certi?ed, and the case remains pending. Thus, individuals may still be included in the class even though the individual is no longer subject to the CARRP policy. 17. About 24 percent of the current class members have had their USCIS national security concern resolved, and are no longer subject to the CARRP policy, but Jl TWICE. ION or MA l'l'l [13w - 4 (2 7-cv-(ltitw4-RAJ) lien mum Sum 1?0. nm as DC 20084 1353? 512-1543 Case Document 126-1 Filed 03/01/18 Page 6 of 9 they remain class members because their immigration bene?t request remains pending.3 In these cases, the adjudication time may be unrelated to the fact that the individual was at some point subject to the CARRP policy. USCIS's current average adjudication time for naturalization and adjustment of status is approximately ten months, even though an individual becomes a class member if an application is pending at least six months. 18. If an applicant is ultimately found ineligible for the immigration bene?t sought, then the application is denied. If the applicant is ultimately found eligible for the immigration benefit sought, then the application is granted. The Stipulated Protective Order is Not Suf?cient I9. I understand that, in October 2017, the then-Acting Director of USCIS, James McCament, formally asserted a law enforcement privilege over information that would con?rm or deny that any particular individual was subject to CARRP, and therefore is, or was, considered by USCIS to present a national security concern. Dkt. No. 94-5. 1 also understand that the Court subsequently ruled that Plaintiffs? need to obtain this information outweighed the Govemment?s reasons for withholding it from disclosure to Plaintiffs. Dkt. No. 98 at 4. I also understand that, in its ruling, the Court noted ?that there is a protective order in place, Dkt. 86, and Plaintiffs? attorneys could supplement the protective order.? 1d. 20. USCIS considers the identities of particular individuals subject to the CARRP policy (and considered by USCIS to have an articulable link to a national security ground for inadmissibility or removal) to be highly sensitive, non-public, ?for of?cial use only? information.?1 This information identi?es individuals currently being vetted by USCIS for national security concerns (or who were considered a national security concern at some point after the class was certi?ed, and their application remains 3 The class members in this litigation are constantly changing as cases are adjudicated, or the individual?s case becomes pending for at least six months. This estimate is based on who was a class member on December Mr. McCament explained In his declaration. any disclosure of information that an Is or was subject to CARRP is contrary to USCIS policy and should not have occurred. See Dkt. No. 94-5 at 1 HATES iSi'IL?t MON 0! MM 11 ILMRICII - 5 (2: I 7-H 43009441141) Ben Frmiklin Sum. PD I301: 81:8 (202) 512-1542 Case Document 126-1 Filed 03/01/18 Page 7 of 9 pending) and who may also be under investigation by another law enforcement or intelligence agency. In my considered professionaljudgment, the Stipulated Protective Order, Dkt. No. 86, is not suf?cient to protect information identifying the class members that is to be provided to Plaintiffs pursuant to the Court?s October 19, 2017 Order. The Stipulated Protective Order prohibits Plaintiffs from generally publicizing the class list or telling unnamed class members whether they are included on the list.5 It does not, however, prohibit plaintiffs? counsel from sharing the information with the named plaintiffs. or witnesses to whom disclosure is reasonably necessary during their depositions. 22. Although the named plaintiffs in this action will not be included on the class list, as their cases have been adjudicated, those individuals have no need to know the identities of other individuals who are class members. 23. The Stipulated Protective Order also allows plaintiffs? counsel to seek depositions, potentially from unnamed class members, and then reveal to them, during the depositions, that they are class members. 24. Unnamed class members have un?adjudicated benefits that are currently pending before USCIS, and USCIS has determined that there may be a national security inadmissibility ground that may affect their eligibility for the benefit sought. 25. Informing those individuals that they are class members is likely to disrupt proper adjudication of the benefit that they are seeking, and may make it dif?cult or impossible for USCIS to collect all relevant evidence related to eligibility for the bene?t. 26. While 8 C.F.R. requires USCIS to inform an applicant about derogatory information of which the applicant is unaware, and permit the applicant an opportunity to respond, the regulation is only applicable if the derogatory information 5 I understand that, despite the terms of the Stipulated Protective Order, Plaintiffs? counsel have indicated their intent to disclose to unnamed class members that they are on the list, i.e. subject to CARRP and are or did have an articulable link to a national security ground for inadmissibility or removal. UNITED STATES DEPARTMENF OF JUSTICI DECLARA HON or MATI I n. - 6 (2: am Puma 5mm no there Waslinlsm, DC 20034 (202} 532-3542 Case Document 126-1 Filed 03/01/18 Page 8 of 9 will form a basis of the decision. Unless the regulation is implicated in a particular case, USCIS cannot and does not reveal privileged and sensitive information to an applicant. 27. In experience, it is difficult to gather any additional evidence if the individual prematurely becomes aware that they are being vetted for a particular reason. Once aware, the individual may change his or her behavior, coordinate with others to prevent USCIS from collecting statements from other relevant persons, step certain behaviors. or intentionally provide misleading information. 28. In addition, revealing that an individual is subject to the CARRP policy may disrupt a criminal investigation related to terrorism or other national security issues. For example, if an unnamed class member is a bad actor, notification that he or she has been subject to the CARRP policy would certainly lead the individual to suspect that their bad acts are being investigated. This could disrupt an individual investigation, or, if the individual is the subject of an investigation involving a large number of people, that individual could report back to others in the group that their activities are likely being investigated. In this way, large investigations could also be adversely affected. 29. While USCIS continues to maintain that the identities of the class members are subject to the law enforcement privilege, USCIS also respects this Court?s ruling. The information, however, remains highly sensitive, and should not be shared beyond those to whom it is absolutely necessary to reveal it. To that end, USCIS seeks to limit dissemination of the class members? identifying information, i.e. their names, A numbers, and application ?ling date, to Plaintiffs? attorneys of record. any experts retained by Plaintiffs. and the Court and court personnel, and to require Plaintiffs? counsel to handle the information in a secure fashion, such as maintaining it in a password-protected ?le, and not transmitting over electronic systems that do not employ point-to-point 30. USCIS also seeks to have the Court make explicit that plaintiffs? counsel may not contact unnamed class members based on their inclusion in the class members list. and may not confirm to unnamed class members who contact them whether they are I DI ARA now or MA mitw D. - 7 (2: [hi?m?tlin Bm?b? wmimgm oc amt {20235124542 Case Document 126-1 Filed 03/01/18 Page 9 of 9 included on the class list. Such an order would prevent individuals who are currently being vetted by USCIS, and potentially investigated by law enforcement or intelligence agencies, from prematurely becoming aware of that fact. I declare under penalty of perjury that the foregoing is true and correct. Executed this day of March, 2018, at Washington, DC. Matthew D. Emrich FDNS Associate Director U.S. Citizenship and Immigration Service Washington, DC. TMTED OF JUSTICE DI CLARA IZMRICII - 8 (2: Box ms Wad lingo?. DC 20014 (202) 5324512 Case Document 126-2 Filed 03/01/18 Page 1 of 11 EXHIBIT 10:25' 26 27 28 Case Document 126-2 Filed 03/01/18 Page 2 of 11 THE HONORABLE RICHARD A. JONES UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ABDIQAFAR etal., CASE NO. C1740094-RAJ Plaintiffs? DECLA. RATION OF DAVID V. EISENREICH IN SUPPORT OF MOTION FOR LIMITED- PROTECTIVE ORDER DONALD TRUMP, ez? al., Defendants. Noting Date: March 9, 2018 DECLARATION OF DAVID EISENREICH (1) I am currently the Section Chief of the National Name Check Program SeCtion with the Federal Bureau of Investigation I have held that'position since June 2017. (2) In my cUrreht capacity as Sectionphief, I supervise the National Name Check Units. The statements contained in this declaration are based?upOn my personal knowledge, upon information provided to me in my of?cial capacity, and upon conclusions and determinations reached and made in accordance therewith. . DECLARATION OF DAVID EISENREICH 31. Am DEF ARIMENF OF mag IN SUPPORT OF MOTION FOR PROTECTIVE ORDER mom-m O?ioe o?m?gm?m 1438311011 17-0094-RAJ - 1 DistrictOmm Section P.0.Box868,Bmanldin Station (202)616-9131 Case Document 126-2 Filed 03/01/18 Page 3 of 11 (3) Due to the nature of my of?cial duties, I am familiar with the procedures followed by the FBI in responding to requests for information from its ?les pursuant to the policy and the procedures Of the United States Citizenship and Immigration Services (4) The purpose of this declaration is to explain the National Name Check Program and to explain the harms that could result from disclosure to individual Plaintiffs and individual potential class members in Waga?z, et al v. Trump, et al. a list of the two classes of Plaintiffs certi?ed by the Court inthis case. NATIONAL NAME CHECK PROGRAM (5) The ?National Name Check Program ("Program") has the mission bf disseminating information from the BI's Central Records System in response to requests submitted by federal agencies. The CRS contains the FBI's administrative, personnel, and investigative ?les. The Program has its genesis in Executive Order No. 1045 O, issued during the Eisenhower Administration. That executive order addressed personnel security issues and mandated National Agency Checks as part of the pre-employment vetting and backgrOund investigation process for prospective Government employees. Although Executive OrderlNo'. 10450 was superseded in January of 2017 by Executive Order No. 13467, the FBI continues to perform the primary National Agency Check conducted on all United States Government employees. Since its modest beginning, the Program has grown exponentially, with more and more customers seeking background information from FBI ?les on individuals before bestowinga privilege, such as Government employment or an appointment, a security clearance, attendance at a White House function, a green card," naturalization, or a visa. In addition to serving our regular DECLARATION OF DAVID EISENREICH UNIED ST ATES DEP OF JUSTICE. IN SUPPORT OF MOTION FOR PROTECTIVE ORDER (Mugsm 0mm ofmga?m Lj?ga?m C17-0094-RAJ - 2 DisuiotCoun Section PO. Box 868, Ben Franklin Station Washington, DC20044 (202)616-9131 Case Document 126-2 Filed 03/01/18 Page 4 of 11 Government customers, the FBI conducts numerous name searches in direct support of the FBI's counterintelligence, counterterrorism, and homeland security efforts. RESOLUTION ATE (6) There are three stages involved in the completion of an individual name check: Batch processing, Name Search, and Analysis Reporting. The ?rst stage in the process, Batch processing, involves the transfer Of the name check requests from USCIS to the via electronic medium. The output data is uploaded into an FBI system, and the names are electronically checked against the BI's CR3. (7) If there is a possible match with the subject?s Personally Identi?able Information (PII) to a FBIrecord, it is considered a ?hit.? If a search comes up with an exact match to a name and either a close date of birth or social security number, it is designated an "Idem.? During the Batch processing phase, approximately 60 percent of the name checks submitted by USCIS are returned to USCIS as non-reportable information within 48-72 hours. Non- reportable information indicates that the FBI's CRS contains no identi?able information regarding a particular individual or that the FBI has a matching record but the informationdoes not add adjudicative value to USCIS. A non-reportable information result returned to US CIS de?nitively concludes the name check process concerning that particular request. Duplicate submissions identically spelled narnes with identical dates of birth and other identical information submitted while the original submission is still pending) are not checked, and the duplicate submissions are returned to USCIS within 48-7 2 hours. The remaining 40 percent of name checks continue forward to the second stage of the process, Name Search. During Name Search an expanded manual name search is required. search computer databases for different ?elds and identifying information DECLARATION OF DAVID EISENREICH DEPARW OFJUSHCE IN SUPPORT OF MOTION FOR PROTECTIVE ORDER cm Division once Litigation CI7-0094-RAJ - 3 DistridCWSec?On PO. Box 868, Ben Franldin Smion (202)616-9131 Case Document 126-2 Filed 03/01/18 F3age 5 of 11 pertaining to USCIS subjects. Approximately 30 percent of these resulted as non?reportable information in the Name Search process. Again, this result is returned to USCIS and de?nitively conclude the name check process. generally completes 90% of the name check requests in thirty (30) days. i (9) The remaining 10 percent of name checks proceed to the third and ?nal stage of the processing, Analysis and Reporting. During Analysis and Reporting are responsible for reviewing and analyzing FBI records and providing results to customers. If a record was electronically uploaded into the CRS electronic record-keeping system, it can be reviewed quickly. If the record is not electronically available, the relevant information must be retrieved from an existing paper record. Once the information is retrieved, an analyst reviews the records for relevant information. If appropriate, the FBI forwards a summary of the relevant information to USCIS. (10) At each stage of processing, the generally works on the oldest name checks on a ?rst-in, ?rst-served protocol. This protocol re?ects that all applicants?are equally deserving and ensures that all applicants are treated fairly. However, if an applicant's name check requires a review of numerous FBI records and ?les, even though that name "check request came in ?rst, the name check may require additional time until all responsive records are located and reviewed. (11) Exceptions to the ?rst-in, ?rst-served policy occur when USCIS directs that name checks be handled on an "expedited" basis. Based on its own criteria, US CIS determines) which name checks are to be expedited. Once designated as an T?expedite," that name check proceeds to the front of the queue along with other prioritized name check requests, in front of the others waiting to be processed. DECLARATION OF DAVID UNITED 8mm DEPARTMENT OF manE IN SUPPORT OF MOTION FOR PROTECTIVE ORDER mm?, O?oe Li?m?on - 4 DislrictCourtSeetim P.O. 80x868,Ben Station (202)616-9131 Case Document 126-2 Filed, 03/01/18 PageGof 11 (12) Expedited service allows USCIS to expedite name checks based on their internal criteria. However, the FBI limits the number of expedite requests it will accept from USCIS consistent with available resources and personnel, as well as because only ?a limited number of applications can be expedited for the process to remain meaningful, as too many expedited requests would merely reorder the queue and lead to no net bene?t. USCIS NAME CHECK REQUESTS (13) I understand that the Plaintiffs certi?ed by the Court as classes in Wagafe, et al v. Trump, et al. contain individuals seeking to adjust to legal permanent resident status and individuals seeking naturalization. USCIS typically requests name checks for individuals seeking to adjust to legal permanent resident status and individuals seeking naturalization. (14) USCIS, in fact, submits a signi?cant portion of all incoming name check requests. In Fiscal Year (FY) 2017, the number of USCIS name checks was more than 20% higher than the average of the prior three years. This equated to approximately 7,250 additional USCIS name check requests submitted to weekly. Despite the increase, generally continues to complete 60% of the name check requests within 48 72 hours. generally completes 90% of the name check requests in thirty (30) days. The remaining 10% of the name checks require a more detailed review or further research. These 10% of USCIS name checks are then being assigned to for detailed review and research. (15) Asipreviously mentioned, the number of "hits" and the availability of electronic ?les associated with a name may delay the processing of a name check request. A "hit" is a . possible match with a name in an FBI record. The number of times the name appears in FBI records correlates to the number of records which require review. DECLARATION OF DAVID IUSHCE IN SUPPORT OF DEFENDANT MOTION FOR PROTECTIVE ORDER CivilDivinon, of?ce Litigation C17-0094-RAJ -. 5 D'miaCamSeaim 868.erth Station (202)616-9131 Case Document 126-2 Filed 03/01/18 Page 7 of 11 (16) In addition, the processing of common names also contributes to a delay in processing a name check request. The names associated with a name check'request are searched in a multitude of combinations, switching the order of ?rst, last, and middle names, as well as . combinations with just the ?rst and last, ?rst and middle, and so on. Without detailed information in both the ?le and agency submission, it is dif?cult to determine whether or not a person with a common name is the same person mentioned in FBI records. Common names can often have more than 200 hits on FBI records. (17) Another contributing factor which was brie?y mentioned earlier in this declaration is the customer agencies? elective to expedite name check processing for certain name check requests. acknowledges expediting checks is the result of a compelling need, but it does further delay checks. which are not expedited. THE NATIONAL NAME CHECK PROGRAM IS ADDRESSING THE FACTORS THAT CONTRIBUTE TO DELAYS IN PROCESSING A NAME CHECK (18) I understand that Plaintiffs have alleged that delays in FBI name checks previously led to delays in USCIS adjudication decisions. Complaint at 1[ 57. i (19) The FBI is addressing delays on three fronts: leveraging technology, augmenting resources and refuting processes. (20) developed and is implementing the Neirt Generation Name Check Program system to replace the current workflow applications in use and provide additional automation aimed at improving the accuracy and ef?ciency of the name check ,process. (21) In. September of 2015, the awarded a new ?ve-year analytical services contract. Since awarded, the contract has been modi?ed to increase the overall number of contractors, provide overtime hours and modify terms to incentivize high performers. In DECLARATION OF DAVID UNITED sr Am DH, ARM OF JUSTICE IN SUPPORT OF DEFENDANT 5 MOTION FOR PROTECTIVE ORDER CivilDivision, Of?ce ofImmigrationl?gation - 6 DisiridComSedion Po. Box 868, Ben Flanldin Station WashingtonDCZOOM (mums-9131 Case Document 126-2 Filed 03/01/18 Page 8 of 11 addition, two other FBI support contracts have been modi?ed to support the retrieval and scanning of paper-based records. . I (22) The FBI is also using overtime to maximize productivity. The is in the process of hiring additional employees to ?ll current vacancies and has implemented an. employee development program to streamline the training of new employees, thereby signi?cantly decreasing the amount of time needed before a new employee can begin to signi?cantly impact the workload. The employee development program led to the development of a name check employee training manual. - (23) through the Records Management Division, Records Automation- Section, is scanning the paper ?les required for review in order to provide machine readable documents for the Analysis and Reporting stage. It is also building an Electronic Records System that allows for future automation of the name check process. (24) is working with federal agency customers to identify high priority requests or requests no longer needed to prioritize/reduce backlog. (25) As a mid-term improvement, is exploring technology updates to thename check process. Speci?cally, the FBI procured textual analysis sOftware in order to investigate ways to further automate the name check process. The goal is to incorporate analytical software applications that reduce the time spent to verify the identity of the individual and, once veri?ed, assists in the analysis. This type of automation should decrease the time required to process a name check, thereby increasing production. (26) As a long-term improvement, the FBI is developing a Central Records Complex that will create a central repository of records. Currently, paper ?les/information must be retrieved from over 265 locations throughout the FBI. The Central Records Complex will DECLARATION or DAVID WSTATES DEPARWOFJUSHCE IN SUPPORT OF DEFENDANT 5 MOTION FOR mum-Sm O?mo?mn?ga?m Li?ga?cm - 7 DistictCourtSeaion 19.0.30? 868,Bm?anldinSIa?on (202)616-9131 Case Document 126-2 Filed 03/01/18 Page 9 of 11 address this issue, creating a central repository?scanning of documents, and expediting access to information contained in billions of documents that are currently manually accessed in locations throughout the United States and the world. (27) The FBI cannot provide a speci?c time frame for completing any particular name check submitted by USCIS. The processing of name checks, including those which are expedited at the request of USCIS, depends upon a number of factors, including wherein the processing queue the name check lies; the workload of the analyst processing the name check; the volume of expedited name checks the analyst must process for, among others, military deployment, ?age-outs,? sunset provisions such as Diversity Visa cases, compelling reasons such as critical medical conditions, and loss of Social Security or other subsistence; the number of ?hits,? possible matches) that must be retrieved, reviewed and resolved; the number of records from various Field Of?ces that must be retrieved, reviewed and resolved; the name check subject?s role and extent of involvement in any FBI investigation or case ?le; whether the case is currently pending or closed; necessary steps to ensure pending investigations and classified or sensitive information is not compromised through a-name check response; and, more generally, the staff and resources available to conduct the checks. (28) When a USCIS name check is completed, the FBI provides the USCIS as quickly as possible. On occasion, depending on the results providedito USCIS by the FBI, USCIS may require additional follow-up and coordination with the FBI. THE FBI DOES NOT ADJUDICATE IMMIGRATION APPLICATION BENEFITS OR ADMINISTER CARRP (29) It is important to note that the FBI does not adjudicate applications for bene?ts under the Immigration and Nationality Act. If appropriate, through the Name Check Program, the FBI provides a summary of available information to USCIS for use in its adjudication DECLARATION OF DAVID - IN SUPPORT OF DEFENDANT 5 MOTION FOR PROTECTIVE ORDER CivilDivision, O?ioe ofhmnigraticn 1111mm - 8 DistrictComtSedion PO. Box 868, Ben Station (202)616-9131 Case Document 126-2 Filed'03/01/18 Page 10 of 11 process. I am aware from my review of the declaration of James W. McCament submitted in the Wagafe, et al v. Trump, et al case (?McCament declaration?) that a USCIS immigration services of?cer adjudicating an immigration bene?t application shall check and review law enforcement agencies and/or intelligence community records, including the FBI Name Check, to determine whether an articulable link to national security exists related to a particular applicant.1 (30) Controlled Application Review and 'Resolution Program is not an FBI program. I understand from my review of the McCarnent declaration that is a consistent, agency-wide approach for identifying, processing and adjudicating application and petition for immigration bene?ts that involve national security concerns.? The FBI, however, does not administer CARRP, which is solely a USCIS program. THE FBI DOES NOT PUBLICLY DISCLOSE NAME CHECKS RESULTS (31) I have been advised that the Plaintiffs in Wagafe, et al. v. Trump, et (11., have requested that USCIS provide to them a list of individuals who are subject to CARRP. While the FBI will acknowledge whether or not a name check was conducted, and process such requests, it does not disclose to individuals the results of their name checks with respect to investigative records. The FBI follows this approach whether or not the name check revealed derogatory information i. the existence of investigative records because if the FBI only refused to disclose information in those instances involving derogatory information, that refusal would itself be interpreted as an admission that the FBI possessed investigative records about the individual. This, in turn, could result in subjects or targets of FBI investigations taking countermeasures or other actions to thwart law enforcement, thus potentially compromising 1 Nothing in this declaration should be construed as con?rming or denying the name check results of?any particular individual. DECLARATION OF DAVID EISENREICH WSTATES DEPARWTOFJUSHCE IN SUPPORT OF MOTION FOR PROTECTIVE ORDER can C17-0094-RAJ - 9 WWMOH - P.O. BoxS?S,Ba1anldin Station Wastingmoczoou (202)616-9131 Case Document 126-2 Filed 03/01/18 Page 11 of 11 investigations, con?dential sources, or investigative techniques. Through channels developed in the FBI's name check process, the FBI discloses relevant information only for its use before USCIS renders ?nal decisions on applicants' petitions. (32) In light of this concern, a list of individuals to whom USCIS has applied CARRP should notbe publicly disclosed or disclosed to individual Plaintiffs because disclosure could allow individuals to infer that they may be subject to scrutiny by law enforcement. Such disclosure could suggest to subjects that USCIS may have received derogatory information from the FBI during the name check process. As explained above, the FBI must take a consistent approach to protecting against the disclosure of information implicating name check results to protect sensitive law enforcement information and prevent individuals from attempting to thwart FBI investigations. Pursuant to 28 U.S.C. ?1746, Ideclare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed this 15? day of March, 2018. David F. Eisenreich Section Chief National Name Check Program Section Records Management Division Federal Bureau of Investigation Washington, .C. DECLARATION or DAVID EISENREICH IN Sumar or Morton FOR ORDER 017-0094-RAJ - 10 . (202)616-9131 Case Document 126-3 Filed 03/01/18 Page 1 of 5 EXHIBIT Case Document 126-3 Filed 03/01/18 Page 2 of 5 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE ABDIQAFAR WAGAFE, et a1. Case No. 2: l7-cv?00094?RAJ Plaintiffs, Honorable Richard A. Jones TRUMP, et a1., Defendants HECLARATIQN OF TATUM KING IN GE MOTION FQR. RRQTEGTWE ORDER I II, Tatum King, state as follows: 1. I am the Assistant Director, Domestic Operations, Homeland Security - I Investigations (HSI), US. Immigration and Customs Enforcement (ICE), an agency in the Department of Homeland Security (DHS). Following the enactment of the Homeland Security Act of 2002, ICE was created from elements of several legacy agencies, including the criminal investigations staffs of the former US. Customs Service (USCS) and the former Immigration I and Naturalization Service (INS). As a result, all Special Agents who formerly Worked forthe USCS and" the INS became a part of ICE. ICE is the second largest investigative agency in the Federal Government. Within ICE, HSI has approximately 8,260 employees, including over 6,100 Special Agents assigned to twenty-six (26) Special Agent? ?1n- Charge (SAC) of?ces in cities throughout the United States and In countries around the world. Special Agents have a wide array of responsibilities relating to the investigation of criminal activity, which in addition to investigating violations of the country?s immigration laws, includes the investigation of contraband and merchandise smuggling, fraud 1n both import and export transactions, criminal DECLARATION OF TATUM KING 1 m1 0311:3319 DisrictCothection - Bmanklm Salon, R0. Box 868 WashingtonDCZUW (2112) 5324542 Case Document 126-3 Filed 03/01/18 Page 3 of 5 ?nance and money laundering, alien smuggling and human traf?cking, cybercrimes, and infringements upon intellectual property rights. mission is to uphold public safety and protect the United States. ICE has important roles in. securing the nation?s borders, ensuring economic, transportation, and infrastructure security, and preventing terrorist attacks by investigating and interdicting the people, money, and materials that support terrorist and criminal activity. 2. As the Assistant Director of Domestic Operations, I provide oversight and support to all HSI domestic field personnel, including 26 SACs with responsibility for more than 200 of?ces. In this capacity, I am responsible for strategic planning, national policy implementation and the development and execution of operational initiatives. The of?ces under my direction are responsible for leading effort to identify, disrupt, and dismantle transnational criminal and terrorist organizations that threaten the security of the United States. 3; As ICE is? the investigativearm of DHS, HSI may share'sensitive law enforcement information with other agencies in furtherance of homeland security. Theinformation can include investigations into active criminal enterprises and national security threats, including counterterrorism, counter-proliferation, and visa violations with national security or public safety concerns. United States Citizenship and Immigration Services (USCIS) is one of the DHS Agencies to which HSI provides derogatory and investigative information. The individuals that are the subject of the information may have applications for relief or bene?ts pending before. I USCIS. 4. Based upon my understanding of the type of information ordered to be released in this case, I believe that release of the information would effectively'reveal sensitive law enforcement information, in addition to revealing the general nature of HSI law enforcement DECLARATIONOF TATUM KING - 2 . - amalgam Ben Franklin Station, PO. Box 868. . Washington, DC 20044 5324542 Case Document 126-3 Filed 03/01/18 Page 4 of 5 techniques and procedures, and would impact national security. Revealing such sensitive information could undermine the efforts of H81 to carry out its mission of identifying and eliminating vulnerabilities that pose a threat to our nation?s borders, as well as ensuring economic, transportation and infrastructure security, and national Security. i 5. . Given the nature of Controlled Application Review and-Resolution - Program (CARRP), as described in the declaration from James W. McCament, the then-Acting Director, and now Deputy Director, USCIS, disclosure of the names of individuals in CARRP program may reveal to those individuals that they are the subject of government inquiry and investigations. The disclosure to individuals that they are the subjects of ongoing investigations and (ii) the general nature of the investigations could compromise existing investigations and endanger the lives or safety of participating law enforcement personnel by revealing the existence of such inveStigations. 'It is. a critical investigative technique not to reveal to persons that they are the subjects of law enforcement investigations. Subjects who are told; of on-going investigations may alter their habits and/or appearances, may alert their compatriots and co-conspirators, may go into hiding, may destroy evidence, or may anticipate the activities of federal agents and thereby put the agents, their investigations or members of the'public at risk. Even if the individuals who were the subjects of the investigations were law-abiding themselves, disclosing that they Were. of investigative interest could alert their business associates who are involved in illegal activities that federal agencies, may have investigated individuals with whom they (the business associates) "have had contact. ICE therefore can neither cOn?rm nor deny whether any of the ind?ividuals? names provided under the Order are now Or ever have been a subject of investigative interest. DECLARATION OF TATUM KING 3 - (2: DistrictCourtSec?on . Ben Franklin Station, PO. Box 868 . Washington, DC 20044 (202) 5324542 - Case 2:17-cv-00094eRAJ Document 126-3 Filed 03/01/18 Page 5 of 5 6. Release of this information beyond the attorneys fer the plaintiffs, could place in jeopardy the national security, as a result of disruptions to the agency?s law enforcement efforts. Moreover, even the inadvertent disclosure of information to eitherthe plaintiffs or the general . public creates the risk of compromising investigative techniques, methods, and thus national security. Without directing any aspersions toward the integrity of plaintiffs or the general public, this agency simply cannot afford even a slight risk that the individuals most closely involved with this case could lose possession or control of the documents or otherwise compromise their security, leading to improper and unauthorized use of the information. This risk of disruption and serious injury to ongoing and future investigations and serious injury to the results. of prior investigations that would be caused by even inadvertent'release of use of these investigative techniques and methods is'unacceptable to ICE for the reasons stated above. Pursuant to 28 U.S.C. ?1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this day of March, 2018. TatumKing V. Assistant Director, Domestic Operations Homeland Security Investigations US. Immigration and Customs Enforcement 500 12 St. SW, Washington, DC 20536 DECLARATION OF TATUM KING 4 (2: DistrictComtSoction BmFrarrk?nSta?orgPOBoxS?s - WastingtonDCZOOM (2035324542 Case 2:17-cv-00094-RAJ Document 126-4 Filed 03/01/18 Page 1 of 4 1 The Honorable Richard A. Jones 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 11 12 13 CASE NO. 2:17-cv-00094-RAP ABDIQAFAR WAGAFE, et al., Plaintiffs, 14 v. 15 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR LIMITED PROTECTIVE ORDER 16 DONALD TRUMP, et al., 17 Defendants. 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR LIMITED PROTECTIVE ORDER 2:17-cv-00094-RAP -1- OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. BOX 868, BEN FRANKLIN STATION WASHINGTON, D.C. 20044-0860 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 126-4 Filed 03/01/18 Page 2 of 4 1 Upon consideration of Defendants’ motion for a limited protective order, the 2 Court, finding good cause therefor, GRANTS Defendants’ motion. 3 IT IS HEREBY ORDERED that disclosure of, and access to, the names, 4 5 6 7 8 9 10 11 12 13 Alien numbers (“A numbers”), and application filing dates of the unnamed plaintiff members of the Naturalization Class and Adjustment-of-Status Class shall be limited to the following: (1) Plaintiffs’ attorneys of record, during such time as they continue to represent Plaintiffs; (2) Experts retained by Plaintiffs to the extent reasonably necessary to prepare expert reports and testimony; and (3) The Court and court personnel. AND IT IS FURTHER ORDERED that Plaintiffs’ attorneys of record 14 shall maintain the above-described information in a secure manner, i.e. in a locked 15 filing cabinet (for any paper copy) or in a password-protected electronic file to 16 which only authorized persons have access, and shall not transmit that information 17 over any electronic mail or cloud-based sharing unless the method of transmission 18 19 20 21 22 23 24 employs point-to-point encryption or other similar encrypted transmission. AND IT IS FURTHER ORDERED that Plaintiffs’ counsel, and any person acting on their behalf, are prohibited from either disclosing to any individual who contacts them whether that individual is an unnamed member of either the Naturalization Class or Adjustment-of-Status class, or contacting the unnamed plaintiff members of the Naturalization Class and Adjustment-of-Status 25 class for any purpose absent prior order of this Court. 26 27 28 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR LIMITED PROTECTIVE ORDER 2:17-cv-00094-RAP -2- OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. BOX 868, BEN FRANKLIN STATION WASHINGTON, D.C. 20044-0860 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 126-4 Filed 03/01/18 Page 3 of 4 1 It is so ordered. 2 3 Dated this ______ day of _________, 2018. 4 5 _______________________________ HON. RICHARD A. JONES United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR LIMITED PROTECTIVE ORDER 2:17-cv-00094-RAP -3- OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. BOX 868, BEN FRANKLIN STATION WASHINGTON, D.C. 20044-0860 (202) 616-9131 Case 2:17-cv-00094-RAJ Document 126-4 Filed 03/01/18 Page 4 of 4 1 Presented by: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 CHAD A. READLER Acting Assistant Attorney General WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation TIMOTHY M. BELSAN Deputy Chief, National Security & Affirmative Litigation Unit, District Court Section Office of Immigration Litigation s/ Edward S. White EDWARD S. WHITE, NY Bar #2088979 Counsel for National Security/Trial Attorney National Security & Affirmative Litigation Unit District Court Section Office of Immigration Litigation Civil Division United States Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0868 Telephone: (202) 616-9131 Facsimile: (202) 305-7000 Email: edward.s.white@usdoj.gov 25 AARON R. PETTY JOSEPH F. CARILLI, JR. Counsel for National Security/Trial Attorney National Security & Affirmative Litigation Unit District Court Section Office of Immigration Litigation 26 Attorneys for Defendants 22 23 24 27 28 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR LIMITED PROTECTIVE ORDER 2:17-cv-00094-RAP -4- OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. BOX 868, BEN FRANKLIN STATION WASHINGTON, D.C. 20044-0860 (202) 616-9131