Case 2:17-cv-00094-RAJ Document 131 Filed 03/09/18 Page 1 of 9

The Honorable Richard A. Jones

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ABDIQAFAR WAGAFE, et al., on
behalf of themselves and others similarly
situated,
Plaintiffs,

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v.

No. 2:17-cv-00094-RAJ
DEFENDANTS’ REPLY IN SUPPORT
OF DEFENDANTS’ MOTION TO FOR
LIMITED PROTECTIVE ORDER
HON. RICHARD A. JONES

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DONALD TRUMP, President of the
United States, et al.,

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Defendants.

NOTED ON MOTION CALENDAR:
March 9, 2018

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DEFENDANTS’ REPLY SUPPORTING DEFENDANTS’
MOTION FOR LIMITED PROTECTIVE ORDER
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE
Civil Division, Office of Immigration Litigation
District Court Section
219 S. Dearborn St., 5th Floor
Chicago, IL 60604
(202) 532-4542

 Case 2:17-cv-00094-RAJ Document 131 Filed 03/09/18 Page 2 of 9

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Plaintiffs’ opposition misconstrues Defendant’s motion—which was invited by the

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Court, and which seeks materially different relief than what has been previously

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litigated—as an improper second motion for reconsideration. The fact that Defendants

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are not seeking to withhold categories of information, but instead seeking to shape the

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terms of access, disclosure, and transmittal of information, is enough to dismiss

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Plaintiffs’ unfounded mischaracterization out of hand.

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Moreover, Defendants’ request for this limited protection is premised on a

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declaration from officials not only at U.S. Citizenship and Immigration Services

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(“USCIS”), but also at the Federal Bureau of Investigation (“FBI”) and U.S. Immigration

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and Customs Enforcement (“ICE”). Both FBI and ICE are charged with substantial

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investigative responsibilities that extend well outside the context of adjudication of

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adjustment of status and naturalization applications at issue in this action.

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Finally, Plaintiffs’ “compromise” is nothing of the sort, as it would result in the
precise harms Defendants have articulated a protective order is necessary to prevent.
A. Defendants’ Motion Seeks Materially Different Relief Than What Has
Been Previously Litigated
At the outset, it is important to note that Defendants are not asking this Court to
permit the names and A-numbers to be withheld from class counsel. The Court has
resolved that issue. On March 5, 2018, Defendants initially produced a class list with the
class members’ names, A-numbers, and application filing dates 1 redacted pending
resolution of the instant motion for limited protective order. Notably, Plaintiffs have
identified no prejudice whatsoever that has resulted or will result from withholding this
information until the instant motion is resolved and the security of the information is
assured.
The question now is: Once the information is produced, how can it be used, with
whom it can be shared, and how it should be protected against unauthorized and

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As Defendants explained to Plaintiffs, see ECF No. 128-1, at 1 (top message), the application filing date, taken
together with other biographic information on the class list provided to Plaintiffs would permit an individual to
identify him or herself, even without the use of the name or A-number.

DEFENDANTS’ REPLY SUPPORTING DEFENDANTS’
MOTION FOR LIMITED PROTECTIVE ORDER - 1
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE
Civil Division, Office of Immigration Litigation
District Court Section
219 S. Dearborn St., 5th Floor
Chicago, IL 60604
(202) 532-4542

 Case 2:17-cv-00094-RAJ Document 131 Filed 03/09/18 Page 3 of 9

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inadvertent disclosure? These are fundamentally different issues than the prior question

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of whether the names and A-numbers had to be disclosed at all. Plaintiffs themselves

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recognize this distinction, but deny it has any importance. ECF No. 127 at 4. Even if

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Defendants were relying on the exact same facts (which they are not), it is common sense

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that the same facts often apply differently in different contexts. Furthermore, the fact that

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the information is still considered sensitive is unexceptional—indeed, it is to be expected.
Here, where there is a different question at issue and it is supported by different

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facts (including declarations from officials of two non-party agencies with interests in the

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matter) the suggestion that Defendants are improperly seeking reconsideration for a

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second time is meritless. 2 It defies logic to claim that seeking to withhold it entirely and

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seeking to protect it once disclosed are identical requests.

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B. Plaintiffs Have Offered No Substantively Valid Opposition

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Rather than address the merits of Defendant’s motion for a limited protective

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order, Plaintiffs continue to address the applicability of the law enforcement privilege to

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this information, which the Court has already decided and Defendants are not contesting

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in this motion. In the process of doing so, Plaintiffs step from error to error in concluding

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that they must be permitted to inform potential class members that their naturalization or

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adjustment-of-status application has been processed pursuant to CARRP.
To begin, Plaintiffs selectively quote and paraphrase from the Court’s order to

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give the appearance that the Court has approved of their intentions to release the

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information on the class list to the class members, when the Court has done no such

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thing. See ECF No. 127 at 7. Plaintiffs wrote: “When denying Defendants’ motion for

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reconsideration, the Court explicitly recognized the limited scope of Plaintiffs’ request—

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only releasing ‘the names of potential class members’ to those individuals . . .” Id. This

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Plaintiffs’ curious suggestion that Defendants would have been “more proactive” in seeking this relief if the
information at issue were truly sensitive, ECF No. 127 at 5, is contradicted by Plaintiffs’ own argument that
Defendants are improperly seeking to protect the information more often than permitted. Plaintiffs’ speculative
commentary is also contradicted by multiple sworn declarations.
DEFENDANTS’ REPLY SUPPORTING DEFENDANTS’
MOTION FOR LIMITED PROTECTIVE ORDER - 2
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE
Civil Division, Office of Immigration Litigation
District Court Section
219 S. Dearborn St., 5th Floor
Chicago, IL 60604
(202) 532-4542

 Case 2:17-cv-00094-RAJ Document 131 Filed 03/09/18 Page 4 of 9

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is misleading. The Court did not hold the names of class members should or could be

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released “to those individuals.” Id. What the Court wrote, in full, was:

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Plaintiffs articulated enough to tip the balance in their favor; they requested
limited information—only the names of potential class members—and
explained that those potential class members may already be aware of the
Government’s additional scrutiny considering the passage of time.

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ECF No. 102 at 3. The Court did not say that the names of the individual class members

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should be disclosed to those class members, or approve of Plaintiffs’ plan to contact those

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class members. 3 The Court merely found that producing a list of potential class members

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was not unduly burdensome, and that Defendants had failed to validly invoke the law

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enforcement privilege to preclude producing the list at all. See ECF No. 98 at 3-4.
Indeed, the Court relied in part upon the existence of the stipulated protective

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order to conclude that the privilege should not be enforced, id. at 4, and noted the limited

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scope of Plaintiffs’ demand, explaining that “Plaintiffs did not request more than the

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identities of the class members” and “they requested limited information—only the

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names of potential class members.” ECF No. 102 at 3. The Court did not comment on

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Plaintiffs’ desire to contact individual class members and, if anything, such contacting of

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class members would be inconsistent with the Court’s rationale, which emphasized the

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limited nature of the request. In any event, Plaintiffs’ selective quotation should be given

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no credence. The Court has not previously approved of their plan.

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There are further difficulties. For example, Plaintiffs suggest that “Defendants

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have routinely disclosed to individuals that they are subject to CARRP in response to

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FOIA requests and in other litigation.” ECF No. 127 at 6. But, as previously explained,

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such disclosures have not been routinely made, and in any instance where such a

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disclosure was made, it was contrary to policy and should not have occurred. ECF No.

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94 Ex. E, ¶19 & Ex. G. ¶¶13-26. Nor is it surprising that “examples of how those

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It would be inconceivable to require a law enforcement agency to provide a list of individuals under investigation
for the purpose of notifying the subjects of investigation of that fact – yet that is essentially what Plaintiffs contend
the Court has already done.

DEFENDANTS’ REPLY SUPPORTING DEFENDANTS’
MOTION FOR LIMITED PROTECTIVE ORDER - 3
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE
Civil Division, Office of Immigration Litigation
District Court Section
219 S. Dearborn St., 5th Floor
Chicago, IL 60604
(202) 532-4542

 Case 2:17-cv-00094-RAJ Document 131 Filed 03/09/18 Page 5 of 9

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disclosures caused any harm to law enforcement interests,” ECF No. 127 at 6, would

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themselves be sensitive and not for public consumption in open court.
Citing their own prior assertion in a brief (but no actual facts), Plaintiffs claim that

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“[b]ecause the two certified classes are limited to individuals whose applications have

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been languishing for at least six months, they are already on notice that their applications

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have been subject to additional scrutiny.” ECF No. 127 at 7 (citing ECF No. 95 at 3-4)

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(emphasis in original). Again, the record contradicts Plaintiffs’ position. As previously

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shown, a great many applications that are not subject to CARRP remain pending for six

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months before they are adjudicated—it is an entirely ordinary processing timeline. ECF

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Nos. 73 at 4-5 & 73-1. The current average processing time for naturalization and

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adjustment of status applications is approximately ten months. ECF No. 126-1, Ex. A, ¶

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17. Thus, the fact that an application has been pending for six months says nothing about

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whether it is, or has been, subject to CARRP, so confirmation of investigations would

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indeed cause harm beyond what an applicant could reasonably glean from the length of

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time it has been pending. In addition, this harm has now been articulated by senior

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agency officials across multiple agencies.
Finally, Plaintiffs incorrectly state that the Court has rejected Defendants’

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argument that “‘disclosure that an applicant is (or was) subject to CARRP . . . would

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allow the applicant to infer that he or she may be subject to investigative scrutiny by law

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enforcement.’” ECF No. 127 at 7 (quoting ECF No. 126 at 3-4). The Court did not reject

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that argument; it found that on balance Plaintiffs’ needs outweighed the potential harm to

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Defendants, as it had then been articulated. The Court did not identify which, if any, of

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the Plaintiffs’ reasons it found compelling, or which, if any, of Plaintiffs’ stated

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intentions it condoned.
Furthermore, it would be inappropriate to read into the Court’s order an intent to

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permit Plaintiffs to take action inconsistent with the stipulated protective order – as

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notifying class members of their status would be 4 – without an express statement to that

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Other than in the context of a deposition. See ECF No. 86 ¶4.2(h).

DEFENDANTS’ REPLY SUPPORTING DEFENDANTS’
MOTION FOR LIMITED PROTECTIVE ORDER - 4
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE
Civil Division, Office of Immigration Litigation
District Court Section
219 S. Dearborn St., 5th Floor
Chicago, IL 60604
(202) 532-4542

 Case 2:17-cv-00094-RAJ Document 131 Filed 03/09/18 Page 6 of 9

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effect. Plaintiffs were well aware of the type of information that they were likely to seek

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in discovery, and fully negotiated the terms of the stipulation with Defendants. Plaintiffs

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now resort to twisting the language and logic of the Court’s orders to arrive at their

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desired outcome. Their conclusion should be rejected.

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C. The Current Protective Order Is Insufficient and Plaintiffs’
“Compromise” Is Nothing of the Sort
Plaintiffs suggest, as an alternative, the Court adopt a “compromise” that the class
members’ names and A-numbers would be subject to an “Attorney’s Eyes Only”
protective order (subject to challenge under the procedure in the existing stipulated
protective order), but that Plaintiffs’ counsel could inform individuals whether they are
class members. This is not a compromise in any sense of the word. The list as a whole is
already subject to the stipulated protective order. This proposal offers less protection
than what is permitted under the already agreed-to stipulated protective order; permits
individuals with pending benefit applications for whom there is (or was) an articulable
link to a national security ground of inadmissibility or removability to become aware that
they are or were subject to CARRP; and permits Plaintiffs to move to withdraw the
Attorney Eyes Only provision without limitation. This provides no additional protection
to Defendants, apart from withdrawing the ability of the named Plaintiffs to access the
class list as a whole. Defendants would prefer the existing stipulated protective order
remain in place than supplement it with a unilateral, one-sided “compromise.”
CONCLUSION
The Court should grant Defendants’ Motion for a Limited Protective Order.

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DEFENDANTS’ REPLY SUPPORTING DEFENDANTS’
MOTION FOR LIMITED PROTECTIVE ORDER - 5
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE
Civil Division, Office of Immigration Litigation
District Court Section
219 S. Dearborn St., 5th Floor
Chicago, IL 60604
(202) 532-4542

 Case 2:17-cv-00094-RAJ Document 131 Filed 03/09/18 Page 7 of 9

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Dated: March 9, 2018

Respectfully submitted,

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CHAD A. READLER
Acting Assistant Attorney General
Civil Division

EDWARD S. WHITE
Senior Counsel for National Security

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WILLIAM C. PEACHEY
Director, District Court Section
Office of Immigration Litigation
TIMOTHY M. BELSAN
Deputy Chief, National Security
& Affirmative Litigation Unit

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/s/ Aaron R. Petty
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
219 S. Dearborn St., 5th Floor
Chicago, IL 60604
Tel: (202) 532-4542
Fax: (202) 305-7000
Email: Aaron.R.Petty@usdoj.gov
Attorneys for Defendants

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DEFENDANTS’ REPLY SUPPORTING DEFENDANTS’
MOTION FOR LIMITED PROTECTIVE ORDER - 6
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE
Civil Division, Office of Immigration Litigation
District Court Section
219 S. Dearborn St., 5th Floor
Chicago, IL 60604
(202) 532-4542

 Case 2:17-cv-00094-RAJ Document 131 Filed 03/09/18 Page 8 of 9

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 9, 2018, I electronically filed the foregoing

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with the Clerk of the Court using the CM/ECF system, which will send notification of

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such filing to the following CM/ECF participants:

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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

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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

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DEFENDANTS’ REPLY SUPPORTING DEFENDANTS’
MOTION FOR LIMITED PROTECTIVE ORDER
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE
Civil Division, Office of Immigration Litigation
District Court Section
219 S. Dearborn St., 5th Floor
Chicago, IL 60604
(202) 532-4542

 Case 2:17-cv-00094-RAJ Document 131 Filed 03/09/18 Page 9 of 9

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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
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
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

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s/ Aaron R. Petty
AARON R. PETTY
U.S. Department of Justice

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DEFENDANTS’ REPLY SUPPORTING DEFENDANTS’
MOTION FOR LIMITED PROTECTIVE ORDER
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE
Civil Division, Office of Immigration Litigation
District Court Section
219 S. Dearborn St., 5th Floor
Chicago, IL 60604
(202) 532-4542