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D.A. v. Nielsen

United States District Court, D. New Jersey

June 28, 2018

D.A. S.K., and L.M., on behalf of themselves and others similarly situated, Plaintiffs,
KIRSTJEN NIELSEN, et al., Defendants.

          OPINION & ORDER



         This matter comes before the Court on Defendants' letter brief asserting the deliberative process and law enforcement privileges over the named Plaintiffs' Parole Determination Worksheets, as defined in Section 6.2 of Ice Directive 11002.1. (Defendants' Letter Brief, ECF No. 25). For the reasons set forth below, the Defendants' application will be denied.


         A. Procedural History

         This action involves claims under the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment against Secretary of Homeland Security Kirstjen Nielsen, Acting Director of U.S. Immigration and Customs Enforcement Thomas D. Homan, and other federal officials in their official capacities. Plaintiffs D.A., S.K., and L.M. seek declaratory and injunctive relief, on behalf themselves and a class of similarly situated individuals, all of whom are asylum seekers detained under the authority of the Newark Field Office of the United States Immigration and Customs Enforcement Agency (“ICE”) pending the resolution of their asylum applications. (Compl. ¶¶ 1-2).

         Plaintiffs allege that Defendants have adopted a “de-facto no-parole policy” for asylum applicants, under which applicants are automatically denied parole without any individualized assessments. (Id. ¶ 4). According to Plaintiffs, the blanket denial of parole to detainees seeking asylum contravenes the Immigration and Naturalization Act (“INA”), the Fifth Amendment of the United States Constitution, applicable regulations, and, of particular relevance for the instant letter application, ICE Directive 11002.1. (Id. ¶ 130).

         On June 5, 2018, the Court, recognizing its obligation to establish subject matter jurisdiction over this case, issued an Order directing the parties to submit briefing on the Court's subject matter jurisdiction and to appear for oral argument on that issue. (ECF No. 19).

         In connection with the Court's determination of subject matter jurisdiction, the Court ordered Defendants to produce four categories of discovery. The fourth category is at issue here. With respect to the named Plaintiffs only, Defendants were required to produce any worksheets as defined in Section 6.2 of ICE Directive 11.002.1 documenting Defendants' parole decision making process (“Parole Determination Worksheets”) by June 18, 2018, or to submit a letter explaining Defendants' bases for withholding the Worksheets should Defendants attempt to do so. (Id. at 2).

         Defendants elected to withhold the production of the Worksheets and filed a letter brief, consistent with the Court's Order, claiming the Worksheets were protected by the deliberative process privilege and the law enforcement privilege. (Def.'s Letter Br., ECF No. 25). On June 12, 2018, Plaintiffs filed an opposition letter, asserting that neither privilege shielded the Parole Determination Worksheets. (Pl.'s Opp., ECF No. 26). On June 18, 2018, Defendants submitted a reply letter, along with redacted Parole Determination Worksheets for the named Plaintiffs and the Declaration of Deputy Executive Associate Director for Enforcement and Removal Operations Nathalie R. Asher. (Def.'s Reply, ECF No. 32). The Court held oral argument on June 19, 2018 and conducted an in-camera review of the three named Plaintiffs' completed Worksheets.

         B. Parole Determination Worksheets

         ICE Directive 11002.1, titled “Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture” (hereinafter “Parole Directive”), was issued in December 2009 and took effect in January 2010. (Exh. A to Compl., ECF No. 3-2). The Parole Directive applies to arriving aliens who are subject to expedited removal proceedings under Section 235 of the INA and have made a preliminary demonstration of “credible fear” of persecution or torture to a UCSIS officer or an immigration judge. Parole Directive § 1.

         The Court will briefly summarize the aspects of the detention and parole process that are relevant to the named Plaintiffs' detention and parole denials. If an arriving alien is found “to be inadmissible at the border, ” the alien is referred to the expedited removal process under Section 235 of the INA. (Transcript of Oral Argument at 18). These aliens may then pursue asylum, if they demonstrate to a UCSIS officer or an immigration judge that they have a credible fear of persecution or torture. (Transcript at 19); see also Parole Directive §§ 4.1-4.2. Aliens who establish a credible fear in the first instance are then detained pending further consideration of their asylum applications and the outcome of their deportation proceedings. Parole Directive § 4.2. These aliens may be paroled on a case-by-case basis. Id.

         The Parole Directive sets out the parole factors that deportation officers must consider and the procedures that ICE must follow for determining if a detained asylum applicant will be granted parole. Id. §§ 1, 4.4. These factors include whether an alien can establish his or her identity, whether the alien is a flight risk, whether the alien is a danger to the community or to U.S. national security, and any other “exceptional, overriding” factors. Id. ...

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