Lawyer Can See Asylum Officers’ Notes on Clients

     SAN FRANCISCO (CN) – Immigration officials must hand over notes asylum officers take, a federal judge ruled, finding the documents essential to quality representation in immigration proceedings.
     San Francisco-based immigration attorney Jeffrey Martins sued the U.S. Citizenship and Immigration Services and its director, Alejandro Mayorkas, as well as the Department of Homeland Security and DHS Secretary Janet Napolitano under the Freedom of Information Act. While immigration officials made good on some of Martins’ recent requests, they specifically withheld notes taken by officers at asylum interviews, contained in alien records known as “A-files.”
     To date, the agencies have withheld the A-files of 10 of Martins’ clients – all of whom face immigration hearings and possible deportation this year. The agencies argued that the interview notes are protected by the deliberative process privilege, therefore exempting them from FOIA requirements.
     But U.S. District Judge Laurel Beeler disagreed, finding the government failed to show how the deliberative process applies to interview notes. She also rejected contentions by officials that Martins’ request is premature since they have not yet laid out which documents they plan to withhold and why in a Vaughn index, a file that takes its name from the 1973 case Vaughn v. Rosen.
     “The court believes that Mr. Martins has shown – to the extent he can without actually seeing the documents or having a Vaughn index – that he is likely to succeed on the merits of his FOIA claim,” Beeler wrote. “Mr. Martins has put forth a credible argument, supported by authority, that the notes are not deliberative because they most likely are near-verbatim transcripts of the interview and most likely contain only factual material and do not contain the asylum officers’ subjective opinions or defendants’ deliberative process about whether to grant asylum to the interviewee. The court uses the phrase ‘most likely’ because, without a Vaughn index or an in camera review, the court cannot describe the interview notes with certainty.”
     Martins has also established that the officers’ notes are near-verbatim transcripts of the interviews, making them factual information that falls outside the FOIA exemption, according to the ruling. Beeler also found that withholding the interview notes will result in a deprivation of the due process rights of Martins’ clients and threaten his ability to defend them against deportation.
     “Mr. Martins provided unchallenged assertions that, with the interview notes, he is able to identify ways that his clients did not communicate effectively the facts relevant to asylum, better prepare clients (including for cross-examination), and identify, investigate, and address perceived inconsistencies, mistakes, misunderstandings, and miscommunications,” Beeler wrote. “He also presented unchallenged assertions that, when he does not have the notes, he typically must spend significant additional time with affected clients in an effort to reconstruct their interviews from memory. This is an extremely poor substitute for the notes themselves because as time passes, his clients have difficulty remembering the content of their interviews. Moreover, having to devote the additional time to this subject in meetings with clients has a negative impact on Mr. Martins’ law practice.”
     Immigration officials meanwhile failed to show that a preliminary injunction lets Martins leapfrog over other pending requests, giving him preferential treatment.
     “These might be fair arguments in a different context,” Beeler wrote. “As the government well knows, the court is mindful of burdens on agencies. But here, the failure to produce the interview notes is not because defendants are backed up with FOIA requests that are ahead of Mr. Martins’ requests in the queue. Rather, the interview notes have not been produced because defendants contended that they did not have to be, full stop. Indeed, from Mr. Martins’ point of view, his requests already have been processed; after all, he received many documents pursuant to his requests. Also, as to Mr. Martins’ alleged delay, the record here shows that Mr. Martin tried to work out the issue with the government in light of the previous disclosure of similar records to him.”
     Beeler divided Martins’ clients into two groups, those facing asylum hearings this year and those with hearings in 2014. She ordered the government to turn over interview notes for the first group immediately, but allowed immigration officials to compile a Vaughn index for Martins’ FOIA requests pertaining to the second group by July 15 – and fast-tracked handling certain objections.
     “As to category II, by July 15, 2013, defendants must produce to Mr. Martins and the court a Vaughn index for documents (or portions thereof) withheld with respect to Mr. Martins’ clients with initials T.L., E.E., and Y.L. If Mr. Martins objects to any withheld documents, the parties must meet and confer by July 16, 2013 and must file a joint letter brief (that must not exceed 5 pages) by July 17, 2013 at noon that describes the parties’ respective positions and suggestions for compromise,” Beeler concluded.

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