Knight First Amendment Inst. at Columbia Univ. v. U.S. Citizenship & Immigration Servs.

30 F.4th 318

KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, Plaintiff-Appellee,

v.UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, United States Department of State, United States Immigration and Customs Enforcement, Defendants-Appellants,United States Department of Homeland Security, United States Department of Justice, United States Customs and Border Protection, Defendants.

No. 20-3837

August Term, 2021

United States Court of Appeals, Second Circuit.

Argued: January 6, 2022

Decided: April 6, 2022

Catherine Crump (Megan Graham, Samuelson Law, Technology & Public Policy Clinic, U.C. Berkeley School of Law, Berkeley, CA, Xiangnong Wang, Carrie DeCell, Alex Abdo, Jameel Jaffer, Knight First Amendment Institute at Columbia University, New York, NY, on the brief), Samuelson Law, Technology & Public Policy Clinic, U.C. Berkeley School of Law, Berkeley, CA, for Plaintiff-Appellee.

Ellen Blain, Assistant United States Attorney (Sarah S. Normand, Benjamin H. Torrance, Assistant United States Attorneys on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY, for Defendants-Appellants.

Before: Jacobs, Raggi, and Nardini, Circuit Judges.

William J. Nardini, Circuit Judge:

The Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), enacted in 1966, allows citizens to find out what their government is up to. FOIA embodies a strong policy in favor of disclosing materials in response to citizens’ requests. In some circumstances, though, Congress has determined that other interests—such as personal privacy, national security, or foreign policy—outweigh the need for transparency. These circumstances are embodied by a limited set of statutory exemptions from FOIA's disclosure requirements. This case requires us to determine the scope of one such exemption.

Defendants-Appellants United States Citizenship and Immigration Services ("USCIS"), United States Department of State ("DOS"), and United States Immigration and Customs Enforcement ("ICE") appeal from three orders of the United States District Court for the Southern District of New York (Andrew Carter, J. ) entered on September 13, 2019, September 23, 2019, and September 13, 2020, requiring them to produce certain documents in response to FOIA requests from the Knight First Amendment Institute at Columbia University ("Knight"). Knight requested documents concerning the agencies’ interpretation and implementation of provisions of the Immigration and Nationality Act ("INA") that allow exclusion of aliens from the United States based on the aliens’ connections to or endorsement of terrorist activity. The parties have resolved several of Knight's requests, leaving only three sets of documents at issue on appeal: (1) portions of Volume 9 of the Foreign Affairs Manual; (2) the questions that USCIS uses to determine whether to apply the "Terrorism Related Inadmissibility Ground" to applicants for immigration benefits; and (3) an ICE memo titled "ICE Ability to Use 212(a)(3)(C) Foreign Policy Charge." We hold that DOS and USCIS properly withheld the first two sets of documents under FOIA Exemption 7(E). With respect to the third, the record is unclear as to whether ICE has already complied fully with the district court's order, which would render its appeal moot. We therefore remand for further proceedings on that issue.

BACKGROUND

I. Knight's Freedom of Information Act Request

The INA governs immigration and citizenship in the United States. See 8 U.S.C. ch. 12. Section 212 of the INA excludes from admission to the U.S. any alien who "endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization[,]" 8 U.S.C. § 1182(a)(3)(B)(i)(VII), or who is "a representative ... of ... a political, social, or other group that endorses or espouses terrorist activity[,]" id. § 1182(a)(3)(B)(i)(IV)(bb) (together, the "endorse-or-espouse provisions"). The INA also excludes aliens whose admission the Secretary of State "has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States." Id. § 1182(a)(3)(C)(i) (the "foreign-policy provision"). An alien is not excludable "because of the alien's past, current, or expected beliefs, statements, or associations ... [that] would be lawful within the United States, unless the Secretary of State personally determines that the alien's admission would compromise a compelling United States foreign policy interest." Id. § 1182(a)(3)(C)(iii).

On August 7, 2017, Knight filed FOIA requests with several executive agencies, including DOS, USCIS, and ICE. Knight asserted that its FOIA requests were prompted by President Donald Trump's statements and executive orders related to the above-described INA provisions. Specifically, President Trump purportedly stated his intention to institute an " ‘ideological screening test’ for admission into the United States and said that a ‘new screening test’ involving ‘extreme, extreme vetting’ was overdue." Joint App'x at 37 (quoting Karen Deyoung, Trump Proposes Ideological Test for Muslim Immigrants and Visitors to the U.S. , Wash. Post (Aug. 15, 2016), https://perma.cc/G9SCEPHT). President Trump subsequently issued two executive orders that are at issue here: Exec. Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017) and Exec. Order No. 13780, 82 Fed. Reg. 13209, 13215 (Mar. 6, 2017) (together, the "Executive Orders").

The Executive Orders directed executive departments, including DOS and the Department of Homeland Security (under which USCIS and ICE fall), to develop a more robust vetting program for immigrants entering the country. They required "the development of a uniform baseline for screening and vetting standards and procedures" and processes to "ensur[e] the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility." Exec. Order No. 13780, 82 Fed. Reg. at 13215.¹

Knight sought several categories of records related to the way that agencies interpreted and implemented the endorses-or-espouses provisions and the foreign-policy provision of the INA under the Executive Orders. The agencies released a substantial volume of material in response to Knight's request but withheld some documents in whole or in part under various FOIA exemptions. For example, USCIS produced 957 pages in their entirety but withheld 357 pages. The parties resolved most disputes about the scope of the agencies’ withholding between themselves, and Knight filed suit seeking an order requiring the agencies to produce a subset of the documents about which the parties were unable to agree. Before the district court, the parties filed cross-motions for partial summary judgment. Three sets of records addressed in the district court's rulings on those motions remain at issue in this appeal: (1) portions of Volume 9 of the Foreign Affairs Manual ("9 FAM"); (2) a set of training slides, manuals, and guides containing questions relating to the Terrorism Related Inadmissibility Grounds (the "TRIG questions"); and (3) an ICE memorandum titled "ICE Ability to Use 212(a)(3)(C) Foreign Policy Charge" (the "ICE memo").

The court addressed the 9 FAM records in its September 13, 2019, ruling on the parties’ first cross-motions for summary judgment. It addressed the TRIG questions and the ICE memo in its September 23, 2019, ruling on the parties’ second cross-motions for summary judgment. And it addressed the parties’ additional arguments related to the 9 FAM records and TRIG questions in its September 13, 2020, ruling on the government's motion for clarification and reconsideration.

A. Three Sections of the Foreign Affairs Manual

Knight requested "[a]ll Foreign Affairs Manual sections (current and former) relating to the endorse or espouse provisions or the foreign policy provision, as well as records discussing, interpreting, or providing guidance regarding such sections." Joint App'x at 39.

DOS describes the Foreign Affairs Manual and the associated Handbooks as

a single, comprehensive, and authoritative source for the Department's organization structures, policies, and procedures that govern the operations of the State Department, the Foreign Service and, when applicable, other federal agencies. The FAM (generally policy) and the [Foreign Affairs Handbooks] (generally procedures) together convey codified information to Department staff and contractors so they can carry out their responsibilities in accordance with statutory, executive and Department mandates.

DOS, Foreign Affairs Manual and Handbook , https://fam.state.gov [https://perma.cc/5JJC-TKC6] (last visited Mar. 22, 2022).

DOS provided relevant portions of the manual to Knight but redacted certain sections of 9 FAM. In general, 9 FAM includes "directives and guidance" for DOS personnel adjudicating U.S. visas. 9 FAM 101.1. DOS asserted that the redacted portions of the manual were exempt from disclosure under Exemption 7(E).² Versions of three partially redacted sections remain at issue: 9 FAM 302.6, 9 FAM 40.32, and 9 FAM 302.14.

• Eight versions of 9 FAM 302.6. DOS redacted eight versions of 9 FAM 302.6, titled "Ineligibilities Based on Terrorism Related Grounds." Joint App'x at 66. It asserted that the redacted portions "disclose law enforcement investigation techniques, procedures, and guidelines." Id. Its Vaughn index³ lists each redaction and explains how the redaction falls within the exemption. For example, "9 FAM 302.6-2(B)(1)(b). reveals interagency cooperation procedures during the process of checking for terrorism-related ineligibilities," id. ; and "9 FAM 302.6-2(B)(4)e. (2) and (5) gives guidelines for when spouses and children trigger the requirement for further security investigation and how to conduct that process," id. at 67. DOS concluded that "[d]isclosure of any of the above information could reasonably be expected to risk circumvention of the law because terrorists

...