Asian Americans Advancing Justice - Asian Law Caucus v. U.S. Department of…

Background

Asian Americans Advancing Justice—Asian Law Caucus (ALC) sought records under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, from the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) and the Department of State. The request concerned a memorandum of understanding between the United States and Vietnam about accepting the return of Vietnamese citizens who arrived in the United States before July 12, 1995, and had been ordered removed.

After ALC filed the lawsuit, the government provided a version of the memorandum with all but three paragraphs disclosed. The remaining dispute concerned redactions in Sections 4.4, 5.2, and 6. The government submitted an unredacted version for the court’s private review, along with a Vaughn index—a description of withheld material and the legal grounds for withholding it.

FOIA Exemption 7(E)

The government relied on FOIA Exemption 7(E), which protects law-enforcement records that would disclose investigative techniques, procedures, or guidelines when disclosure could reasonably be expected to risk circumvention of the law. The government bears the burden of showing that an exemption applies.

The court first found that the memorandum satisfied Exemption 7’s threshold requirement that the records be compiled for law-enforcement purposes. ICE has a law-enforcement mandate, and the court found a rational connection between the memorandum and ICE’s authorized enforcement of federal immigration laws.

The court treated the three redacted sections as law-enforcement guidelines. Section 4.4 described conditions for eligibility for acceptance of return; Section 5 described factors DHS considers before removal; and Section 6 described factors Vietnam considers before accepting a person’s return.

ALC argued that the sections concerned only the logistics of removal and were unrelated to investigations or prosecutions. The court rejected that characterization, reasoning that the removal process includes the circumstances under which Vietnam issues travel documents and accepts a person for return. The court also rejected ALC’s argument that similar information had already been disclosed, because the cited disclosures involved different countries or general policies and did not establish that the Vietnam-specific information was publicly known.

The court found that disclosure could allow an affected Vietnamese citizen to alter conduct, selectively provide information, or manipulate or conceal documentation to avoid removal or prevent Vietnam from issuing travel documents. It therefore concluded that the government had met its burden under Exemption 7(E).

Segregability and disposition

FOIA generally requires agencies to disclose reasonably separable, nonexempt portions of a record. Because the remaining redactions were limited and contained no separable nonexempt content, the court found that no additional material could be released.

The court held that the redacted information in Sections 4.4, 5.2, and 6 was exempt from disclosure. It stated that ALC had received the memorandum’s nonexempt information, granted summary judgment in favor of the defendants, and ordered that judgment be entered for the government. The court also directed the defendants to file publicly accessible versions of ICE’s statement about the redactions, the declaration of Marla Jones, the redacted memorandum, and the Vaughn index by September 9, 2022.