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Boost to Venezuelan Immigrant’s FOIA Case

(CN) - An asylum seeker who allegedly ran Venezuela's last independent television station got a leg up in his fight for more records from immigration officials.

Nelson J. Mezerhane Gosen and several family members sought asylum in the United States in August 2010, claiming they faced political persecution in their native Venezuela.

Gosen, who now lives in Florida, claimed he had made an enemy of the Venezuelan government as a co-founder of the country's last independent television station, which ran programming that criticized the government.

Venezuela's current president, Nicolas Maduro, continued Hugo Chavez's policies after Chavez died last year.

After almost three years passed without a response about the status of his asylum application, Gosen filed a FOIA request seeking his complete "alien file." The U.S. Citizenship and Immigration Services released 498 complete pages, but withheld 55 pages and redacted 84 others.

Gosen challenged those exemptions with a July 2013 federal complaint in Washington, D.C. Negotiations whittled the contested documents down to 77 pages, 47 of which were fully withheld.

Though USCIS officially notified Gosen in November 2013 that it had approved his asylum application, Gosen claimed that the agency had actually granted him asylum in September 2010, weeks after his application, and violated its own rules by waiting three years to notify him. He demanded additional information about the delay.

U.S. District Judge Ketanji Brown Jackson concluded Thursday that USCIS may have improperly withheld some information on 22 pages excluded under Exemption 5. That exemption protects from disclosure interagency and internal memoranda and letters that would not be legally available to a private litigant opposing the agency in court.

Gosen persuaded the court that those records, all of which were released after USCIS purportedly granted him asylum in September 2010, may not qualify for withholding as part of the agency's decision-making process.

Evidence that the asylum seeker presented includes a database screenshot USCIS initially sent Gosen in response to his FOIA request, showing that his application may have been approved before the exempted documents were generated.

The court did, however, find that USCIS properly shielded the rest of the documents under exemptions for logistical details about government employees, including the names of asylum officers.

"Most of the relevant redactions within the 77 pages concern identifying information about USCIS or other government employees, such as their name, signature, and personal database code, and the significant privacy interest at stake when it comes to identifying information of government employees in the context of FOIA requests is beyond dispute," the opinion states.

The same principle applies to non-law enforcement third parties whose identifying information is included in law enforcement reports and background checks, the Dec. 4 opinion states.

Moreover, Gosen failed to show how the redacted information could help him expose USCIS misconduct in handling his asylum case, Jackson said.

The agency's application of an exemption that protects techniques and procedures for law-enforcement investigations or prosecutions survived Gosen's challenge as well. Since disclosing such information would help applicants with criminal backgrounds understand what type of law-enforcement information USCIS considers in processing asylum cases, the agency was justified in withholding it, the court found.

Jackson said the parties should try to negotiate the remaining contested documents, some of which contain information withheld under various exemptions.

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