                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                                 )
KUSUMA NIO, et al.,                              )
                                                 )
Plaintiffs,                                      )
                                                 )
v.                                               ) Civil Action No. 17-00998 (ESH/RMM)
                                                 )
UNITED STATES DEPARTMENT                         )
OF HOMELAND SECURITY, et al.,                    )
                                                 )
Defendants.                                      )
                                                 )

                                  MEMORANDUM OPINION

        Pending before the Court is Plaintiffs’ request that the Court order Defendant United

States Citizenship and Immigration Service (“USCIS”) to produce a May 17, 2018 USCIS

internal guidance (“May 2018 Guidance”)1 regarding military naturalization adjudication

procedures, and that the Court permit Plaintiffs to use the May 2018 Guidance as an exhibit to

their motion for summary judgment. USCIS objects to that request, arguing that the May 2018

Guidance is not admissible because it is outside the scope of the administrative record, and that

the May 2018 Guidance contains sensitive and privileged information that should not be

disclosed to Plaintiffs or their counsel. Judge Ellen S. Huvelle referred the parties’ dispute

regarding the admissibility of the Guidance to the undersigned magistrate judge. See 6/20/2018

Order, ECF No. 159. Having reviewed the May 2018 Guidance in camera and after considering

the parties’ submissions and applicable law, the undersigned concludes, for the reasons set forth




1
  USCIS has advised the Court that the May 2018 Guidance has been updated; the Court’s
references to the May 2018 Guidance in this opinion pertain to the most recent version of that
guidance.
below, that Plaintiffs are entitled to receive a redacted copy of the May 2018 Guidance for use in

connection with summary judgment briefing.

                                        BACKGROUND

       The complex factual background of the underlying action is set forth in detail in the

Court’s September 6, 2017 Memorandum Opinion denying Plaintiffs’ request for a preliminary

injunction. See Nio v. U.S. Dep’t of Homeland Sec., 270 F. Supp. 3d 49 (D.D.C. 2017). The

undersigned will, however, briefly summarize the portions of the background and procedural

history that are relevant to the pending dispute regarding the admissibility of the Guidance.

       Plaintiffs are non-citizens who enlisted in the United States Army’s Selected Reserve of

the Ready Reserve through the United States Department of Defense’s Military Accessions Vital

to the National Interest (“MAVNI”) program and have pending applications for naturalization.

See id. at 49. They have sued USCIS and its Director, the Department of Homeland Security and

its Acting Secretary, and the United States Department of Defense (“DOD”) and its Secretary,

raising a variety of claims under the Administrative Procedure Act (“APA”). See 2d Am.

Compl., ECF No. 61. Plaintiffs allege, inter alia, that: (1) USCIS has acted arbitrarily and

capriciously by requiring MAVNI applicants to undergo enhanced security screening prior to the

adjudication of their naturalization applications; and (2) USCIS has unreasonably delayed its

investigation, examination, and adjudication of MAVNI naturalization applications, in violation

of Section 706(1) of the APA. See Nio, 270 F. Supp. 3d at 66; 2d Am. Compl. ¶¶ 152-73.

       In response to a Court Order, USCIS filed a copy of a July 7, 2017 internal USCIS email,

titled “Updated MAVNI N-400 Guidance,” (“July 2017 Guidance”), that advised USCIS Field

Offices that “pending and future MAVNI cases may not proceed to interview, approval, or oath

until confirmation that all enhanced DoD security checks are completed.” Decl. and Doc.



                                                 2
Produc. of Daniel Renaud (“July 2017 Renaud Decl.”) at 25, ECF No. 23-1 ; see also 7/14/2017

Order, ECF No. 22 (ordering production of documents referenced in prior declaration). USCIS

submitted the July 2017 Guidance as part of “a compilation of all final agency guidance provided

to the USCIS Field Offices and/or to the National Benefits Center by [Field Operations

Directorate] headquarters from February 28, 2017, through the present, setting national policies

regarding the processing of N-400 applications filed by MAVNI recruits.” July 2017 Renaud

Decl. at 3-4. The July 2017 Guidance was filed on the public docket, and the body of that

Guidance contains no redactions.2

       The Court has referred several issues to the undersigned for resolution, including a

referral to “work with the parties to minimize the delay between when DOD completes an MSSD

[military security suitability determination] and uploads it to the portal to share with USCIS, and

when USCIS begins to undertake the remaining steps of the naturalization process.” 4/12/2018

Order, ECF No. 135. As part of that referral, the undersigned ordered Defendants and their

counsel to “confer with USCIS about drafting an email or other communication from the field

directorate to the field offices that reinforces the July 7th Policy and reiterates that the processing

of naturalization applications, including scheduling naturalization interview for MAVNIs, should

not be delayed.” 5/22/2018 Minute Order. At a subsequent hearing on May 31, 2018,

Defendants asserted that such an email communication would be redundant and unnecessary,

because USCIS had recently circulated further guidance (the May 2018 Guidance) to USCIS

Field Offices. See 7/13/2018 Resp. to Order of the Ct., ECF No. 166-1. Defendants described

the May 2018 Guidance as a document that “addresses the processing of naturalization




2
 Portions of the “to” and “from” lines of the emails forwarding and distributing the guidance
were redacted.
                                                  3
applications,” and explained that “[f]or all military naturalization cases, the guidance states that

the offices will schedule naturalization interviews to occur within thirty days of the date on

which all USCIS background checks are complete.” Id. At that hearing, Plaintiffs sought the

production of the May 2018 Guidance, and USCIS indicated that it would not provide the

document to Plaintiffs absent a Court Order.

       As a result of the issues raised at the May 31, 2018 hearing before the undersigned, by

Order dated June 20, 2018, Judge Huvelle referred to the undersigned the parties’ dispute

regarding “the May 17, 2018 USCIS Guidance’s admissibility as an appendix to plaintiffs’

motion for summary judgment.” 6/20/2018 Order, ECF No. 159. The undersigned requested

briefing on the issue. See 6/21/2018 Minute Order. Defendants contend that: (1) Plaintiffs are

not entitled to receive the May 2018 Guidance because it postdates and was not part of the

decision-making process regarding the formulation of the July 2017 Guidance; (2) there is no

basis to allow discovery or otherwise require USCIS to disclose non-record materials; and (3) the

May 2018 Guidance contains privileged material that should not be disclosed to Plaintiffs. See

Defs.’ Mem. Regarding the Admissibility of the May 17, 2018 Internal Guidance Doc., ECF No.

162; Decl. of Daniel M. Renaud in Support of USCIS’s Privilege Assertions Re Internal May 17,

2018 USCIS Guidance (“July 2018 Renaud Decl.”), ECF No. 166-2. Plaintiffs assert that the

May 2018 Guidance is relevant to several of their claims, including Plaintiffs’ assertion that

USCIS took arbitrary and capricious agency action, Plaintiffs’ APA unreasonable delay claims,

and Plaintiffs’ constitutional claims. See Pls.’ Resp. Regarding the Admissibility of the USCIS

May 17, 2018 Internal Guidance Doc. (“Pls.’ Resp.”) at 6-10, ECF No. 165. Plaintiffs also

challenge the adequacy of Defendants’ privilege assertions and contend that any applicable

privilege was likely waived. See id. at 10-12.



                                                  4
                                            ANALYSIS

       Plaintiffs’ challenge to USCIS’s failure to complete the adjudication of their

naturalization applications pursuant to APA Section 706(1), on the grounds that it constitutes

unreasonably delayed agency action, entitles Plaintiffs to rely upon material that is outside the

scope of the administrative record. Determining whether USCIS has unreasonably delayed the

investigation, examination, and adjudication of Plaintiffs’ naturalization applications will require

the Court to conduct “a fact intensive inquiry,” applying the factors set forth in

Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 79-80 (D.C. Cir. 1984).

See Nio, 270 F. Supp. 3d at 66; see also Mashpee Wampanoag Tribal Council, Inc. v. Norton,

336 F.3d 1094, 1100 (D.C. Cir. 2003) (“Resolution of a claim of unreasonable delay is ordinarily

a complicated and nuanced task requiring consideration of the particular facts and circumstances

before the court.”); Hamandi v. Chertoff, 550 F. Supp. 2d 46, 54 (D.D.C. 2008) (noting that “the

determination of whether an agency’s delay is unreasonable is a fact specific inquiry”).

Judicial review of such claims “is not limited to the record as it existed at any single point in

time, because there is no final agency action to demarcate the limits of the record.” Nat’l Law

Ctr. on Homelessness and Poverty v. U.S. Dep’t of Veterans Affairs, 842 F. Supp. 2d 127, 130

(D.D.C. 2012). Accordingly, the fact that the May 2018 Guidance will not be included in the

administrative record does not render it inadmissible as an exhibit to Plaintiffs’ motion for

summary judgment.

       The May 2018 Guidance contains information that may be germane to the Court’s

analysis of Plaintiffs’ unreasonable delay claim. Evaluating the reasonableness of any delay in

agency action “will depend in large part . . . upon the complexity of the task at hand, the

significance (and permanence) of the outcome, and the resources available to the agency.”



                                                  5
Mashpee Wampanoag Tribal Council, Inc., 336 F.3d at 1102. Defendants acknowledge that the

May 2018 Guidance articulates policies and procedures governing the processing of MAVNI

naturalization applications. Therefore, the May 2018 Guidance should shed light upon “the

complexity of the task at hand,” id., and provide context for the parties’ arguments regarding the

reasonableness of USCIS processing times. Further, given that the July 2017 Guidance already

is part of the record, reviewing the May 2018 Guidance will allow Plaintiffs and the Court to

ascertain whether the more recent Guidance modifies or provides further details regarding the

processing and adjudication requirements applicable to MAVNI naturalization applications or

supersedes the July 2017 Guidance in any respect. Consequently, the May 2018 Guidance is

precisely the type of document that Plaintiffs should be permitted to rely upon as support for

their motion for summary judgment.

       Notwithstanding its clear relevance to the APA unreasonable delay claim, the May 2018

Guidance could be withheld from Plaintiffs, and provided only to the Court for in camera

review, if a privilege precludes its disclosure. USCIS asserts that the law enforcement privilege

shields portions of the May 2018 Guidance from disclosure to Plaintiffs or the public. See July

2018 Renaud Decl. ¶¶ 6-12. In connection with that assertion of privilege, USCIS has submitted

for in camera review a privilege log and annotated copy of the May 2018 Guidance reflecting the

specific text over which it asserts the law enforcement privilege.3 See id. ¶ 8; 6/28/2018 Minute

Order (directing Defendants to submit additional documents asserting the privilege).




3
  Plaintiffs requested permission to file a response to the July 2018 Renaud Declaration, given
that Defendants’ initial filing did not indicate with specificity to what extent, and on what basis,
USCIS asserted the law enforcement privilege. However, the undersigned declined to permit
Plaintiffs to file an additional brief because the Court’s in camera review of the relevant
documents provided adequate information to evaluate USCIS’s assertion of the law enforcement
privilege.
                                                 6
       The law enforcement privilege is a qualified privilege that allows the federal government

to withhold “information that would be contrary to the public interest in the effective functioning

of law enforcement.” A.N.S.W.E.R. Coal. v. Jewell, 292 F.R.D. 44, 50 (D.D.C. 2013) (quoting

Tuite v. Henry, 181 F.R.D. 175, 176 (D.D.C. 1998)). The privilege “serves to protect ‘the

integrity of law enforcement techniques and confidential sources, protects witnesses and law

enforcement personnel, safeguards the privacy of individuals under investigation, and prevents

interference with investigations.’” Id.; see also In re Anthem, Inc. Data Breach Litig., 236 F.

Supp. 3d 150, 159 (D.D.C. 2017). To successfully invoke that privilege: (1) “the head of the

department having control over the requested information” must formally assert the privilege; (2)

the assertion of privilege must be based upon the official’s “actual personal consideration” of the

relevant documents; and (3) the official must specify in detail “the information for which the

privilege is claimed, with an explanation why it properly falls within the scope of the privilege.”

Landry v. F.D.I.C., 204 F.3d 1125, 1135 (D.C. Cir. 2000) (internal quotes omitted).

       USCIS has formally asserted the law enforcement privilege by submitting the declaration

of Daniel M. Renaud, Associate Director of the Field Operations Directorate at USCIS.

Although Mr. Renaud is not the head of USCIS, he reports directly to the Director and has been

delegated the authority to assert the law enforcement privilege on his behalf. See July 2018

Renaud Decl. ¶¶ 1-2. Mr. Renaud also is personally familiar with the May 2018 Guidance and

the policies and procedures discussed therein. See id. ¶¶ 3-5. Accordingly, USCIS has

established that Mr. Renaud is an official with sufficient responsibility to assert the privilege, and

that he has based that assertion of privilege upon his personal consideration of the May 2018

Guidance. See Landry, 204 F.3d at 1135-36 (concluding head of regional division had

“sufficient rank” to assert law enforcement privilege and declining to require that agency head



                                                  7
directly assert the privilege). The declaration, privilege log, and proposed redactions provide

sufficient detail for the Court to evaluate USCIS’s assertion of the law enforcement privilege.

       Determining whether the law enforcement privilege protects the information the

government seeks to withhold requires courts to “weigh the public interest in nondisclosure

against the [requesting party’s] need for access to the privileged information.’” Tuite v. Henry,

98 F.3d 1411, 1418 (D.C. Cir. 1996) (quoting In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir.

1988)) (internal quotation marks and modifications omitted). That analysis involves

consideration of factors such as:

       (1) the extent to which disclosure will thwart governmental processes by
       discouraging citizens from giving the government information; (2) the impact
       upon persons who have given information of having their identities disclosed; (3)
       the degree to which governmental self-evaluation and consequent program
       improvement will be chilled by disclosure; (4) whether the information sought is
       factual data or evaluative summary; (5) whether the party seeking discovery is an
       actual or potential defendant in any criminal proceeding either pending or
       reasonably likely to follow from the incident in question; (6) whether the police
       investigation has been completed; (7) whether any interdepartmental disciplinary
       proceedings have arisen or may arise from the investigation; (8) whether the
       plaintiff's suit is non-frivolous and brought in good faith; (9) whether the
       information sought is available through other discovery or from other sources;
       (10) the importance of the information sought to the plaintiff's case.

In re Sealed Case, 856 F.2d at 272. The government bears the burden of proving that the

balance favors nondisclosure. See In re Anthem, 236 F. Supp. 3d at 166.

       Turning to the balancing test, USCIS has demonstrated that the public interest in

nondisclosure outweighs Plaintiffs’ need for access to some, but not all, of the information that

USCIS proposes to redact. The disputed text describes aspects of the naturalization adjudication

process including law enforcement techniques and processes such as: the types of information

revealed through certain security checks; the external databases that are searched as part of the

background screening process; questions USCIS employees may ask applicants in order to detect

fraud and evaluate applicants’ eligibility for immigration benefits; and information about the
                                                 8
techniques and procedures USCIS uses to perform security checks while processing

naturalization applications. See July 2018 Renaud Decl. ¶¶ 7-11. As USCIS notes, disclosing

such information “will risk circumvention or evasion of the law,” id. ¶ 7, and could “provide an

applicant for an immigration benefit a roadmap to evade such processes and procedures and

conceal information that would otherwise make the applicant ineligible for the immigration

benefit sought.” Id. Given that Plaintiffs have pending naturalization applications, disclosing

that information to them carries some of the same risks as disclosing information about pending

investigations to the defendant in a criminal case, which would implicate concerns like those at

issue in the fifth and sixth Sealed Case factors. See generally Sealed Case, 856 F.2d at 273. On

the other hand, Plaintiffs have brought a “non-frivolous action” in good faith, the case is likely to

be resolved on dispositive motions without discovery, and, to advance their APA unreasonable

delay claim, Plaintiffs need to know information about the USCIS process for investigating,

evaluating, and adjudicating MAVNI naturalization applications. See id. (recommending that

courts consider such issues under factors eight through ten).

       Having weighed the relevant factors, the Court concludes that the law enforcement

privilege protects all information that would identify the document path or link to the internal

USCIS network location at which the May 2018 Guidance resides. USCIS has asserted that

privilege to justify withholding the single line of text that appears at the bottom of each page of

the May 2018 Guidance. See Privilege Log (submitted in camera). Disclosing these internal

network links risks compromising USCIS’s systems, and Plaintiffs have no cognizable interest in

receiving that information. Therefore, the balance clearly favors nondisclosure.

       Evaluating the privilege claim for the remaining proposed redactions of information that

is relevant to Plaintiffs’ claims requires a page-by-page assessment of the respective interests of



                                                  9
Plaintiffs and Defendants. The chart below reflects the conclusions the Court has drawn after

conducting that analysis. Each finding that the law enforcement privilege applies is based on a

determination that disclosing the relevant text would risk harm to USCIS and its law

enforcement partners that outweighs Plaintiffs’ need to receive the withheld information. Given

that the May 2018 Guidance is a non-public document that describes internal agency procedures

for evaluating and adjudicating naturalization applications, the Court will designate the entire

document as “Protected Material” and subject to the limitations on the use and distribution of

“Protected Material” that are set forth in the Protective Order governing this case. See Order

Granting Mot. for Protective Order, ECF No. 123. Where Plaintiffs’ needs outweigh the public

interest in protecting sensitive law enforcement information contained within the May 2018

Guidance, the “Protected Material” designation will mitigate the risks of disclosure.



                                         Law-
     Page         Description        Enforcement                    Rationale
                                      Privileged?
 3          Discussion of                YES      Disclosure would risk circumvention of
            techniques for                        the law and undermine USCIS’s efforts
            screening applicants for              to prevent and detect fraud. Possessing
            fraud.                                this information would not advance
                                                  Plaintiffs’ claims.
 4          Discussion of                YES      Disclosure would risk circumvention of
            techniques for finding                the law and undermine USCIS’s efforts
            derogatory information                to identify derogatory information.
            including external                    Possessing this information would not
            databases searched.                   advance Plaintiffs’ claims.
 8          Description of security      YES      Although disclosure carries only minimal
            checks and additional                 risks, Plaintiffs have no need to receive
            steps applicable to                   this information, because the information
            erroneous filings.                    would neither advance nor provide
                                                  relevant background information for
                                                  Plaintiffs’ claims.




                                                10
                                       Law-
 Page        Description           Enforcement                    Rationale
                                    Privileged?
10-11   Description of steps,           NO      Detailed information regarding NBC
        including security                      processing of applications is essential to
        screenings, that the                    Plaintiffs’ unreasonable delay claim.
        National Benefits                       Plaintiffs’ need outweighs the interest in
        Center (“NBC”) takes                    withholding details regarding the types
        to process applications.                of security screenings performed in this
                                                process. The designation as “Protected
                                                Material” reduces the risks of disclosure.
12      Bulleted list of steps          NO      Detailed information regarding Field
        involved in Field                       Office processing of applications is
        Office Processing of                    essential to Plaintiffs’ unreasonable
        applications, including                 delay claim. Plaintiffs’ need outweighs
        security screenings.                    the interest in withholding details
                                                regarding the types of security screenings
                                                performed in this process. The
                                                designation as “Protected Material”
                                                reduces the risks of disclosure.
12      Description of review          YES      Disclosure would undermine USCIS’s
        undertaken when                         efforts to develop appropriate response to
        applicants have                         removals. Plaintiffs have no need to
        pending removal                         receive this information, because the
        proceedings.                            information would neither advance nor
                                                provide relevant background information
                                                for Plaintiffs’ claims.
19      Description of review          YES      Disclosure would risk circumvention of
        and further                             law by revealing how USCIS responds to
        investigatory steps                     derogatory information and security
        undertaken in response                  screening checks. Plaintiffs have no
        to security check                       need to receive this information, because
        results                                 the information would neither advance
                                                nor provide relevant background
                                                information for Plaintiffs’ claims.
19      Routing and                    YES      Although disclosure carries only minimal
        transmission contact                    risks, Plaintiffs have no need to receive
        information for                         this information, because the information
        requesting external                     would neither advance nor provide
        security check                          relevant background information for
                                                Plaintiffs’ claims.




                                           11
                                          Law-
   Page            Description        Enforcement                    Rationale
                                       Privileged?
 20-21       Description of                NO      Detailed information regarding NBC
             fingerprint check                     processing of applications is essential to
             procedures                            Plaintiffs’ unreasonable delay claim.
             (Section C-2)                         Plaintiffs’ need outweighs the interest in
                                                   withholding details regarding the
                                                   fingerprinting process. The designation
                                                   as “Protected Material” reduces the risks
                                                   of disclosure.
 21-22       Description of process       YES      Although disclosure carries only minimal
             used when applicants                  risks, Plaintiffs have no need to receive
             fail to appear for                    this information. As there is no
             fingerprinting                        indication that failure to appear for
             (Section C-3)                         fingerprinting has affected timing of
                                                   adjudication of Plaintiffs’ applications,
                                                   this information would neither advance
                                                   nor provide relevant background
                                                   information for Plaintiffs’ claims.
 22          Description of process        NO      Plaintiffs need to know information
             used when applicants’                 regarding issues that could delay
             fingerprints expire                   adjudication of their applications to fully
             (Section C-4)                         litigate their unreasonable delay claim.
                                                   That need outweighs the interest in
                                                   withholding details regarding
                                                   fingerprinting process. The designation
                                                   as “Protected Material” reduces the risks
                                                   of disclosure.


         Plaintiffs contend that USCIS may have waived the law enforcement privilege by

voluntarily disclosing the existence of the May 2018 Guidance and describing its contents in

detail. Pls.’ Resp. at 11. The law enforcement privilege can be waived through “voluntary

disclosure of a significant portion of the information claimed to be privileged.” 26A CHARLES

ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 5692 (1st ed.); Dellwood Farms,

Inc. v. Cargill, Inc., 128 F.3d 1122, 1126 (7th Cir. 1997) (“We may assume that like other

privileges the [law enforcement] privilege can be ‘waived’” through “a voluntary surrender.”);

cf. Peck v. United States, 514 F. Supp. 210, 212 (S.D.N.Y.), on reargument, 522 F. Supp. 245

                                               12
(S.D.N.Y. 1981) (finding the government waived the official information privilege after it

released a summary of an investigation that revealed a significant portion of a secret report).

However, Defendants’ prior descriptions of the May 2018 Guidance do not disclose the contents

of the text that fall within the scope of the law enforcement privilege. Nor did USCIS’s

submission of the July 2017 Guidance disclose the substance of the privileged material in the

May 2018 Guidance. Finally, the May 2018 Guidance is an internal agency document, and

nothing in the record suggests that USCIS has disclosed the otherwise privileged information on

its website or through other public means. Therefore, USCIS has not waived the law

enforcement privilege.

       Finally, USCIS proposes to redact portions of the May 2018 Guidance that are not

relevant to Plaintiffs’ claims. This information includes text on pages 2, 5, 9, 10, 17-19, and 22-

25 of the May 2018 Guidance. The text USCIS seeks to redact addresses topics wholly unrelated

to the processing and adjudication of MAVNI naturalization applications. Those redactions are

proper because Plaintiffs have no right to review internal USCIS documents that have no bearing

on their APA and constitutional claims.4

                                         CONCLUSION

       For the foregoing reasons, and as set forth in the Order accompanying this Memorandum

Opinion, the Court concludes that the May 2018 Guidance is admissible and shall be designated

as “Protected Material” and subject to the limitations on the use and distribution of “Protected

Material” that are set forth in the Protective Order governing this case, and that USCIS therefore




4
  USCIS also asserts that the law enforcement privilege provides an alternative basis for
redacting portions of this text. The Court need not evaluate that claim of privilege, because the
text is properly redacted in its entirety due to its lack of relevance to Plaintiffs’ claims.
                                                13
must produce to Plaintiffs a copy of the May 2018 Guidance that has been redacted in a manner

consistent with the foregoing analysis.
                                                                Digitally signed by Robin M.
                                                                Meriweather
                                                                Date: 2018.07.16 15:49:44 -04'00'
Date: July 16, 2018
                                      ROBIN M. MERIWEATHER
                                      UNITED STATES MAGISTRATE JUDGE




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