United States District Court, D. New Jersey
D.A. S.K., and L.M., on behalf of themselves and others similarly situated, Plaintiffs,
KIRSTJEN NIELSEN, et al., Defendants.
OPINION & ORDER
L.WALDOR, UNITED STATES MAGISTRATE JUDGE
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.
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).
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.
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).
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.
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.
Parole Determination Worksheets
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.
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.
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. ...