Case 2:17-cv-00094-RAJ Document 176 Filed 05/01/18 Page 1 of 5 1 The Honorable Richard A. Jones 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 11 12 13 14 15 ABDIQAFAR WAGAFE, et al., Plaintiffs, No. 2:17-cv-00094-RAJ v. DONALD TRUMP, President of the United States, et al., DEFENDANTS’ SUBMISSION PER THE COURT’S ORDER OF APRIL 24, 2018 Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 In its April 24, 2018, order, the Court directed Defendants to (a) identify the total number of potential class members belonging to the two classes certified by the Court; and (b) provide in an in camera submission a random sampling of at least fifty class members with case-by-case explanations for why their names may not be produced to Plaintiffs. Dkt. 162. In response to the Court’s order, Defendants today have submitted four declarations. The first, an unclassified declaration from USCIS, certifies the process used to identity the random sampling and includes the privileged list of fifty randomly-selected members appended to it. The second, a classified FBI declaration, addresses a subset of individuals from that list. The third, a classified USCIS declaration, addresses a subset of individuals from that list. The fourth, a privileged U.S. Immigration and Customs Enforcement (“ICE”) declaration, addresses a subset. Together, these declarations address all individuals on the list. DEFENDANT’S SUBMISSION PER THE COURT’S ORDER OF APRIL 24, 2018 (2:17-cv-00094-RAJ) -1- UNITED STATES DEPARTMENT OF JUSTICE Civil Division 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-3309 Case 2:17-cv-00094-RAJ Document 176 Filed 05/01/18 Page 2 of 5 1 Anthony J. Kassekert, Statistician, Reports and Analysis Branch, Fraud Detection and 2 National Security Directorate, USCIS, explains in an unclassified declaration how USCIS 3 gathered the random sample of fifty class members. Appended to the Kassekert declaration is a 4 complete list of the fifty class members’ names and immigration (“A”) numbers pulled in the 5 random sample – that attachment is privileged and is being submitted ex parte. 6 Matthew D. Emrich, Associate Director of the Fraud Detection and National Security 7 Directorate, USCIS, identifies in a classified declaration the total number of Controlled 8 Application Review and Resolution Program (“CARRP”) class members as 4,817 as of April 12, 9 2018, from roughly 150 countries. The Emrich declaration notes that the total number of 10 naturalization and adjustment of status applications pending six months or more is approximately 11 1.4 million, of which the 4,871 CARRP class members’ applications are a subset. 12 The Emrich declaration also addresses a subset of the randomly selected class members 13 to explain why unredacted information in the possession of USCIS relating to them may not be 14 produced to Plaintiffs or their counsel. 15 The unclassified but privileged declaration of Tatum King, Assistant Director, Domestic 16 Operations, Homeland Security Investigations (“HSI”), ICE, summarizes its concerns about 17 disclosing the identities of the class members and specifically discusses a subset of the 18 individuals from the random sample who are the subjects of active HSI investigations. 19 Last is a classified declaration by Stephen P. Rees, Assistant Director of the FBI’s 20 Records Management Division, detailing reasons why unredacted information in the possession 21 of the FBI regarding a subset of the individuals from the random sampling, as well as all the 22 potential class members more broadly, may not be produced to Plaintiffs or their counsel. 23 Defendants respectfully note that because the declarations contain classified and privileged 24 information, they must be reviewed ex parte, in camera. 25 Defendants are producing this information in accordance with the Court’s April 24, 2018, 26 order, but respectfully reserves the right to seek further review or assert privilege in the event 27 that the Court determines it must be disclosed to the Plaintiffs. 28 Dated: May 1, 2018 DEFENDANT’S SUBMISSION PER THE COURT’S ORDER OF APRIL 24, 2018 (2:17-cv-00094-RAJ) Respectfully submitted, -2- UNITED STATES DEPARTMENT OF JUSTICE Civil Division 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-3309 Case 2:17-cv-00094-RAJ Document 176 Filed 05/01/18 Page 3 of 5 1 2 3 4 5 6 7 8 9 ANNETTE L. HAYES United States Attorney CHAD A. READLER Acting Assistant Attorney General BRIAN C. KIPNIS Assistant United States Attorney Senior Litigation Counsel Office of the United States Attorney for the Western District of Washington 5220 United States Courthouse 700 Stewart Street Seattle, Washington 98101-1271 Telephone: (206) 553-7970 e-mail: brian.kipnis@usdoj.gov /s/ August E. Flentje AUGUST E. FLENTJE Special Counsel Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 514-3309 E-mail: august.flentje@usdoj.gov Counsel for Defendants 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT’S SUBMISSION PER THE COURT’S ORDER OF APRIL 24, 2018 (2:17-cv-00094-RAJ) -3- UNITED STATES DEPARTMENT OF JUSTICE Civil Division 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-3309 Case 2:17-cv-00094-RAJ Document 176 Filed 05/01/18 Page 4 of 5 1 CERTIFICATE OF SERVICE 2 I HEREBY CERTIFY that on May 1, 2018, I electronically filed the foregoing with the 3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to the 4 following CM/ECF participants: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Harry H. Schneider, Jr., Esq. Nicholas P. Gellert, Esq. David A. Perez, Esq. Laura 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. 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 DEFENDANT’S SUBMISSION PER THE COURT’S ORDER OF APRIL 24, 2018 (2:17-cv-00094-RAJ) -4- UNITED STATES DEPARTMENT OF JUSTICE Civil Division 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-3309 Case 2:17-cv-00094-RAJ Document 176 Filed 05/01/18 Page 5 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 E-mail: 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 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 19 /s/ August Flentje AUGUST FLENTJE Civil Division U.S. Department of Justice Counsel for Defendants 20 21 22 23 24 25 26 27 28 DEFENDANT’S SUBMISSION PER THE COURT’S ORDER OF APRIL 24, 2018 (2:17-cv-00094-RAJ) -5- UNITED STATES DEPARTMENT OF JUSTICE Civil Division 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-3309 Case Document 176-1 Filed 05/01/18 Page 1 of 3 The Honorable Richard A. Jones UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ABDIQAFAR WAGAFE, et NO- Plaintiffs, Declaration of Anthony J. Kassekert In Support Of Defendants? Response to The Court?s April 24, 2018 Order Submitted to the Court Ex Parte, In TRUMP, et al., camera Defendants. I, Anthony Kassekert, do hereby declare and say: 1. I am a statistician within the Reports and Analysis Branch of the Fraud Detection and National Security Directorate of United States Citizenship and Immigration Services Department of Homeland Security I have served in this position since June 13, 2013, and previously served as a statistician in the Office of Immigration Statistics within DHS. 2. I hold an undergraduate degree in mathematical statistics, economics, and political science from Iowa State University and a in public policy analysis from Florida State University. 3. As a statistician, my responsibilities include, but are not limited to: pulling data from the Fraud Detection and National Security data system an internal case management system; reviewing analytic work across the agency; analyzing ?'aud, public safety, UNITED STATES DEPARTMENT OFIUSTICE DECLARATION OF ANTHONY KASSEKERT - I (2: l7-cv-00094-RAJ) ButFmidilIStlixL mamas (202) 532-4542 Case Document 176-1 Filed 05/01/18 Page 2 of 3 and national security trends; and working with the Of?ce of Information Technology to improve data quality and the functionality of FDNS-DS. 4. The matters contained in this declaration are based upon my personal knowledge, background, training, and experience, including as a statistician, and information provided to me by USCIS employees, and my understanding of the case of Wagajb, et (11., v. Tram), at 01., Case No. in the United States District Court for the Western District of Washington. 5. I understand that on April 24, 2018, the Court ordered the Government ?to identify the total number of potential class members to the Court.? Dkt. No. 162, at 4. The Court further ordered the Government, within seven days, to provide the Court in camera with ?a random sampling of these members with explanations why their names may not be produced to Plaintiffs.? Dkt. No. 162, at 4. The court requested ?at least ?fty records from this random sample.? Dkt. No. 162, at 4. 6. On April 25, 2018, the FDNS Reports and Analysis Branch was asked to pull a random sample of ?fty records from the April 12, 2018 list of class members. 7. The sampling frame, or the list of possible data points to pick from, was the most recent list of class members. The list contained adjustment of status and naturalization applicants whose application had been pending for at least 6 months, as of April 12, 2018, who were subject to CARRP on or after June 21, 2017, and whose application remained pending as of April 12, 2018. The class list contained 4817 alien numbers 8. I ran a simple random sample of ?fty A-numbers from the sampling frame by uploading the April 12, 2018 class list to the statistical program SAS, and entering the commands I know, based on my mathematical statistical training and my familiarity with the SAS program, to create a random sample in that program. This means that each of the ?fty A- numbers that were selected in the sample had an equal probability of being selected from the 4817 A-numbers. 9. In order to ensure that this particular sample could be reproduced if necessary, a random seed value was needed. In the code this is represented by seed 04252018. This number ensures that if the code is rerun, it will pick the same random ?fty observations from the sample. l?Nl'l'ED STATES DEPARTMENT OFJUSTICE DECLARATION or ANTHONY KASSEKERT - 2 mm (2: l?-cv-00094-RAJ) annuals-umtponmsos wwmamoczoou (202) 532-1542 Case Document 176-1 Filed 05/01/18 Page 3 of 3 10. After i ran the sample, Kenneth L. Cannon, a second statistician within the DNS Reports and A iaiysis Branch, reviewed the code i used to generate the random sample and the data to verify i 5 accuracy. Mr. Cannon veri?ed the code i used to generate the random sample, and determined that the sample was correctly taken. I I. The SAS code used to create the sample was: proe surveyseicet 2A out=wagafe I nL50 seed =042520 I 8 method=srs; run; l2. On April 25, 2018 1 provided the random sample data to USCIS counsel. The random samplt of ?fty A-numbers drawn from the April 12, 2018 class list is attached hereto as Exhibit declare under penalty of perjury that the foregoing is true and correct. Executed this ?rst day of May, 2018 at Washington, DC. Anthony Kassekert, Phi). Statistician US. Citizenship and immigration Service Washington, DC. Due to the langt age in the Court?s April 24, 2018 order, USC IS is not formally asserting privilege over the information conta :ncd in this declaration: however, IS is not waiving any privileges applicable to the information coma uned herein. Further. I am aware that former USCIS Deputy Director James W. McCament formally asserted .1 law enforcement privilege over information that would confirm whether any particular individual was su iject to the Controlled Application Review and Resolution Program and therefore is, or was. considcre by USCIS to present a national security concern. Dkt. No. 94-5. The identities of the individuals in the class list ra idom sample are law privileged, and USCIS would assert the privilege as appropriate to protect this inf: -rmation. I13 ()l'Jl 'h'lifli DECLARA ANTHONY KASSEKERT 1 IMHt'theditn (2: A l) trusts ?raslinJtm IX arm 53245-12