Hamad v. Secretary, Department of Homeland Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

AHMAD M. HAMAD, et al.,

Plaintiffs, Case No. 3:20-cv-476

vs.

ALEJANDRO MAYORKAS, et al., District Judge Michael J. Newman

Defendants.

______________________________________________________________________________

ORDER: (1) GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

(DOC. NO. 41); (2) DENYING PLAINTIFFS’ CROSS-MOTION FOR SUMMARY

JUDGMENT (DOC. NO. 47); (3) DISMISSING WITH PREJUDICE PLAINTIFFS’

THIRD AMENDED COMPLAINT (DOC. NO. 24); AND (4) TERMINATING THIS

CASE ON THE DOCKET

______________________________________________________________________________

This case is before the Court on the parties’ cross-motions for summary judgment on

Plaintiffs’ Freedom of Information Act (“FOIA”) claim, 5 U.S.C. § 552. Doc. Nos. 41, 47. The

motions are fully briefed. Doc. Nos. 46, 48, 49, 50. This matter is ripe for review.

I.

Marriage to a U.S. citizen has its benefits. A foreign national married to a U.S. citizen can

apply to the U.S. Citizen and Immigration Service (“USCIS”) to obtain lawful permanent resident

status through a two-step process. 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(b); 8 C.F.R. § 245.1(a).

First, the U.S. citizen must file a Petition for Alien Relative (Form I-130) with USCIS on their

spouse’s behalf. 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(b). The foreign national must then file an

Application to Register Permanent Residence or Adjust Status (Form I-485). 8 C.F.R. § 245.1(a).

Plaintiff Ahmad Hamad, a foreign national, and his U.S. citizen spouse, Plaintiff Raida Hamad,

filed both petitions hoping that USCIS would award Ahmad lawful permanent residency. Doc.

No. 2 at PageID 4–5; Doc. No. 16-1 at PageID 81.

USCIS conducts “an investigation of the facts in each case” before adjudicating a Form I-

130. 8 U.S.C. § 1154(b). “[N]o petition shall be approved if” the non-citizen previously sought

to be classified as “an immediate relative . . . as the spouse of a citizen of the United States . . . by

reason of a marriage entered into for the purpose of evading the immigration laws.” 8 U.S.C.

§ 1154(c). No matter if the non-citizen’s current marriage is “unquestionably bona fide.” Matter

of Kahy, 19 I. & N. Dec. 803, 805 n.2 (BIA 1988). USCIS must deny the petition upon finding

that the non-citizen previously committed, or attempted to commit, marriage fraud. 8 U.S.C.

§ 1154(c).

While investigating Plaintiffs’ petitions, USCIS determined Ahmad entered one of his prior

marriages solely for the immigration benefit. Doc. No. 16-1 at PageID 85. USCIS denied Raida’s

Form I-130 on that basis. Id. Plaintiffs appealed USCIS’s decision to the Board of Immigration

Appeals (“BIA”) where their case remains pending. Id. at PageID 90.

Plaintiffs made a FOIA request to USCIS to obtain the investigatory file compiled on

Ahmad. Id. at PageID 99; 5 U.S.C. § 552. USCIS identified 893 responsive pages and initially

released 646 unredacted and 137 redacted pages. Doc. No. 43-1 at PageID 280. After some back

and forth, USCIS released 121 additional pages. Id. at PageID 281.

USCIS still withheld, and continues to withhold, 147 pages in whole or in part. Id. Many

of the undisclosed documents contain the personal information of third parties interviewed or

investigated during the adjudication of Plaintiffs’ petitions. Doc. No. 43-2 at PageID 301–33.

Redacted information ranges from third party names, social security and passport numbers, email

addresses, and birthdates, to portions of a now-cancelled Form I-130 that Ahmad’s prior spouse

submitted. Id. USCIS also retained investigatory and witness interview records created by law

enforcement officials as they probed the marriage fraud allegations. Id. USCIS claims that FOIA

exemptions (b)(3), (b)(6), and (b)(7)(C) and (7)(E)—which protect from disclosure documents

exempted from disclosure by statute, containing private information of third parties, and collected

for law enforcement purposes—justify non-disclosure. Doc. No. 43-1 at PageID 281; 5 U.S.C.

§§ 552(b)(3), (6), (7)(C), and (7)(E).

Plaintiffs sued USCIS in this Court under the Administrative Procedure Act (“APA”) for

the remainder of Ahmad’s file. Doc. No. 2 at PageID 7. The Court dismissed their APA claim

but allowed them to bring an amended complaint under FOIA. Doc. No. 19 at PageID 115–16.1

The parties now seek summary judgment on Plaintiffs’ FOIA claim. Doc. Nos. 41, 47.

II.

Summary judgment is appropriate when “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving

party bears the burden of showing entitlement to summary judgment. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 256 (1986). In FOIA cases, the court reviews the record de novo to “determine

whether such records or any part thereof shall be withheld under any of the exemptions.” 5 U.S.C.

§ 552(a)(4)(B). “Because the court must analyze all underlying facts and inferences in the light

most favorable to the FOIA requester, summary judgment for an agency is only appropriate after

the agency proves that it has ‘fully discharged its [FOIA] obligations[.]’” Gosen v. U.S.

Citizenship & Immigr. Servs., 75 F. Supp. 3d 279, 287 (D.D.C. 2014) (citing Willis v. DOJ, 581 F.

Supp. 2d 57, 65 (D.D.C. 2008)) (quoting Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996)).

“Most FOIA cases are decided on summary judgment.” Am. Civil Liberties Union of Mich.

v. F.B.I., 734 F.3d 460, 465 (6th Cir. 2013). Agencies may carry their burden of proof through

1 Plaintiffs also sued for a writ of mandamus ordering USCIS to approve Ahmad’s work authorization

petitions pending Plaintiffs’ appeal of the denial of their Form I-130. Doc. No. 19 at PageID 112. The

Court dismissed that claim too because USCIS has discretion to adjudicate work authorization applications.

Id. at PageID 114–15.

affidavits demonstrating that the claimed FOIA exemption applies. Knight First Amend. Inst. at

Columbia Univ. v. CIA, 11 F.4th 810, 818 (D.C. Cir. 2021) (citing Oglesby v. U.S. Dep’t of Army,

79 F.3d 1172, 1178 (D.C. Cir. 1996)). To prevail on its summary judgment motion, “the

government must show that it made a good faith effort to conduct a search for the requested records

. . . and that [any] withheld materials fall within a FOIA statutory exemption.” Rimmer v. Holder,

700 F.3d 246, 252 (6th Cir. 2012) (quotation omitted and cleaned up).2

III.

FOIA generally requires agencies to disclose their records upon request subject to nine

exemptions. 5 U.S.C. §§ 552(a)(3)(A), (b); U.S. Dep’t of Just. v. Tax Analysts, 492 U.S. 136, 150–

51 (1989) (“An agency must disclose agency records to any person under § 552(a), ‘unless they

may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b)’” (quotation

omitted)). Consistent with FOIA’s “strong presumption” of public access to agency records,

agencies bear “the burden . . . to justify the withholding of any requested documents.” U.S. Dep’t

of State v. Ray, 502 U.S. 164, 173 (1991) (first citing Dep’t of Air Force v. Rose, 425 U.S. 352,

361 (1976); and then citing U.S Dep’t of Just. v. Reporters Comm. for Freedom of Press, 489 U.S.

749, 755 (1989)). “If the Government fairly describes the content of the material withheld and

adequately states its grounds for nondisclosure, and if those grounds are reasonable and consistent

with the applicable law, the district court should uphold the government’s position.” Rugiero v.

2 USCIS submitted a Vaughn index in support of its summary judgment motion. Doc. No. 43-2 at PageID

301–33. Rather than disclosing the documents in question to the court in full for an in camera review, a

Vaughn index permits the agency to summarize the withheld documents in sufficient to detail to permit a

decision on the exemption claim. See Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973). Plaintiffs

moved to compel in camera review of the contested records, but the Court found they failed to rebut the

presumption of good faith that attaches to the agency’s description of the documents. Doc. No. 39 at PageID

199–201.

Dep’t of Just., 257 F.3d 534, 544 (6th Cir. 2001) (quoting Ingle v. Dep’t of Just., 698 F.2d 259,

265 (6th Cir. 1983)).

Three exemptions are at issue: Exemption 6, Exemption 7(C), and Exemption 7(E). Doc.

No. 43-1 at PageID 280–81; Doc. No. 43-2 at PageID 301–33.3 Exemption 6 covers “personnel

and medical files and similar files the disclosure of which would constitute a clearly unwarranted

invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Similarly, Exemption 7(C) shields from

disclosure “records or information compiled for law enforcement purposes [that] . . . could

reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C.

§ 552(b)(7)(C). Exemption 7(C) “provides broader privacy protections than Exemption 6.”

Rimmer, 700 F.3d at 252–53 (quotation omitted). Exemption 7(C) requires courts to “balance the

privacy interest” of third parties with the public’s interest in the information. Reporters Comm.,

489 U.S. at 762. Because “the standard for evaluating a threatened invasion of privacy interests

resulting from the disclosure of records compiled for law enforcement purposes is somewhat

broader than the standard applicable to personnel, medical, and similar files,” id. at 756, records

covered by Exemption 7(C) are also properly withheld under Exemption 6, see Nat’l Archives &

Records Admin. v. Favish, 541 U.S. 157, 166 (2004).

Exemption 7(E) encompasses “records or information compiled for law enforcement

purposes [that] . . . would disclose techniques and procedures for law enforcement investigations

or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions

if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C.

§ 552(b)(7)(E). “Information that relates to law enforcement techniques, policies, and procedures

3 USCIS also withheld records under Exemption 3—covering documents “exempted from disclosure by

statute.” Doc. No. 43-1 at PageID 280–81; Doc. No. 43-2 at PageID 301–33. Plaintiffs do not challenge

the application of Exemption 3 in their memorandum in opposition to USCIS’s summary judgment motion.

Doc. No. 46 at PageID 342–44. Therefore, the Court will consider any such argument waived.

is properly withheld under this exemption.” Showing Animals Respect & Kindness v. U.S. Dep’t

of Interior, 730 F. Supp. 2d 180, 199 (D.D.C. 2010) (citing Boyd v. Bureau of Alcohol, Tobacco,

Firearms & Explosives, 570 F. Supp. 2d 156, 158 (D.D.C. 2008)). Because revelation of internal

law enforcement operations could aid future criminal activity, “Exemption 7(E) sets a relatively

low bar for the agency to justify withholding.” Blackwell v. F.B.I., 646 F.3d 37, 42 (D.C. Cir.

2011).

USCIS meets its burden to show its claimed exemptions justify withholding of the

contested records. Plaintiffs fail to advance any reason why the public interest would favor

disclosing documents that would reveal third party personal information and exclusively aid their

appeal before the BIA. Moreover, disclosure would reveal procedures and techniques USCIS uses

to investigate immigration fraud. USCIS is entitled to summary judgment.

A.

To overcome Exemptions 6 and 7(C), Plaintiffs must show how the public benefit from

disclosure outweighs the “invasion of privacy” experienced by third parties. See Rugiero, 257

F.3d at 550 (“The central inquiry is whether public access to the information is tantamount to an

invasion of privacy; if so we ask whether such an invasion is justified by any countervailing public

benefit from disclosure” (quoting Heights Cmty. Cong. v. Veterans Admin., 732 F.2d 526, 528 (6th

Cir. 1984))). Disclosure must “serve the ‘core purpose of the FOIA,’ which is ‘contribut[ing]

significantly to public understanding of the operations or activities of the government.’” Detroit

Free Press Inc. v. U.S. Dep’t of Just., 829 F.3d 478, 485 (6th Cir. 2016) (en banc) (quoting U.S.

Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 495 (1994)) (emphasis in original). “If

disclosure is not ‘likely to advance [a significant public] interest . . ., the invasion of privacy is

unwarranted.’” Id. (quoting Favish, 541 U.S. at 172). “[T]hat purpose ‘is not fostered by

disclosure of information about private citizens . . . that reveals little or nothing about an agency’s

own conduct.’” Id. (quoting Reporters Comm., 489 U.S. at 773).

Plaintiffs are not entitled to unredacted copies of Ahmad’s file withheld under Exemptions

6 and 7(C). They argue that the purpose of their request is to advance their Form I-130 appeal

before the BIA—a purely private interest. Doc. No. 46 at PageID 342–43. Plaintiffs offer no

reason why the public would benefit from receiving the information redacted or withheld from the

investigation into Ahmad. Id. Nor do they attempt to explain why the third-party privacy interests

at stake must yield to their request. Id. All they want the documents for is to rebut the marriage

fraud allegations made against Ahmad. Id.

Privacy concerns support USCIS’s application of Exemptions 6 and 7(C). Many of the

records withheld or redact contain the personal identifying information of third parties and law

enforcement officers. Doc. No. 43-2 at PageID 301–33. There is no public interest in such

information. See Reporters Comm., 489 U.S. at 766, 769. Other documents include the names

and statements of third-party witnesses interviewed by USCIS. Doc. No. 43-2 at PageID 301–33.

Disclosing their names and the content of their statements, especially if related to a criminal

investigation, could invite embarrassment, harassment, or danger. See Detroit Free Press, 829

F.3d at 481 (explaining that privacy concerns are heightened when records contain potentially

“[e]mbarrassing and humiliating facts—particularly those connecting an individual to criminality”

(citations omitted)).

USCIS properly applied Exemption 7(E), too. USCIS used this exemption to protect

procedures used in, and the outcome of, the investigation and adjudication of Ahmad’s Form I-

485. Doc. No. 43-2 at PageID 301–33. This includes investigator impressions and interview notes

compiled in a Form I-485 processing worksheet and law enforcement database search results. Id.

USCIS also withheld a report compiled, and criminal referral made, by law enforcement officers

during their investigation into possible immigration law violations. Id.

This information falls squarely within Exemption 7(E). Courts routinely exempt from

disclosure records demonstrating how the immigration laws are enforced such as, inter alia,

database searches and coding, details about USCIS adjudication workflow, and interagency

communications. Gosen, 75 F. Supp. 3d at 290. USCIS has shown the redacted and withheld

documents could indeed “increase the risks that a law will be violated or that past violators will

escape legal consequences.” Mayer Brown LLP v. I.R.S., 562 F.3d 1190, 1193 (D.C. Cir. 2009)

(emphasis omitted).

Plaintiffs’ sole counterargument is that they are not trying to use these records to

circumvent the law, just to pursue their BIA appeal. Doc. No. 46 at PageID 343–44. But

Exemption 7(E) is applied prospectively with an eye towards whether the information could

educate future criminal schemes. See, e.g., Morley v. C.I.A., 508 F.3d 1108, 1129 (D.C. Cir. 2007)

(“[A]n agency may seek to block the disclosure of internal agency materials relating to guidelines,

techniques, sources, and procedures for law enforcement investigations and prosecutions, even

when the materials have not been compiled in the course of a specific investigation” (quoting Tax

Analysts v. IRS, 294 F.3d 71, 79 (D.C. Cir. 2002))). Accordingly, Plaintiffs are not entitled to

documents withheld under Exemption 7(E), and their FOIA claim fails as a matter of law.

B.

Plaintiffs also move for summary judgment,4 claiming that they have a procedural due

process right, under the Fifth Amendment’s Due Process Clause, to Ahmad’s file. Doc. No. 47 at

4 Out-of-time, the Court adds, and significantly so. The Court set a February 4, 2022 dispositive motion

deadline that was later extended by consent of the parties to March 7, 2022. Doc. Nos. 33, 37. Plaintiffs

filed their summary judgment motion on April 15, 2022, offering no explanation for their untimeliness or

with a request for leave of court. Doc. No. 47. Such a flagrant disregard for the Court’s scheduling order

PageID 348–49. It is not clear whether they raise the argument as a separate claim or as an

alternative theory to obtain the withheld records under FOIA. Id. Either way, their contention is

without merit.

Plaintiffs rely on two cases to support their procedural due process argument. Id. Neither

is persuasive. In Bangura v. Hansen, the Sixth Circuit rejected as improvidently raised the

plaintiffs’ argument that they had a property interest in a spousal visa. 434 F.3d 487, 496 (6th Cir.

2006). The Bangura plaintiffs did not argue, and the Sixth Circuit did not consider, whether they

had a procedural due process right to derogatory information underpinning a Form I-130 denial.

Id. Lower courts have read Bangura similarly. See, e.g., Singh v. United States, 1:20-cv-799,

2021 WL 229963, at *16 (N.D. Ohio Jan. 22, 2021) (citing Bangura but concluding that the

plaintiffs failed to show they had a due process right to “examine and rebut” evidence of marriage

fraud used to deny a Form I-130).

The Ninth Circuit in Zerezghi v. U.S. Citizenship & Immigration Services held that due

process required USCIS to disclose its evidence of marriage fraud before denying the plaintiffs’

Form I-130 petition. 955 F.3d 802, 813 (9th Cir. 2020). Otherwise, the court explained, the

plaintiffs could not rebut the sham marriage charge before the BIA. Id. The court remanded the

case back to the BIA for a re-adjudication of the plaintiff’s Form I-130. Id. at 816.

But Plaintiffs here are in a different position. They did not appeal the denial of their Form

I-130 to this Court. Doc. No. 24 at PageID 145. Only their FOIA claim remains. Doc. No. 31 at

PageID 184. Even looking to Plaintiffs’ original, now-dismissed complaint, they sought an order

requiring USCIS to grant Ahmad’s work authorization petition. Doc. No. 2 at PageID 6–7. There

is grounds for dismissal of a complaint under Rule 41(b). See, e.g., Bowles v. City of Cleveland, 129 F.

App’x 239, 241 (6th Cir. 2005). As explained below, however, involuntary dismissal is unnecessary

because Plaintiffs’ arguments fail on their own merits.

was no mention of a standalone due process claim related to the Form I-130 adjudication. Doc.

No. 2. Neither Bangura—which never recognized a procedural due process right to evidence

supporting a derogatory information charge—nor Zerezghi—which arose from a Form I-130

appeal—provide Plaintiffs with a path to relief.

Plaintiffs’ suggestion that the Due Process Clause provides an alternative remedy under

FOIA is likewise misguided. Doc. No. 47 at PageID 350. “FOIA is not a means for vindicating

constitutional rights.” Harrison v. Lappin, 510 F. Supp. 2d 153, 157 (D.D.C. 2007) (citing

Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002)). Accordingly,

their summary judgment motion fails.

IV.

For the foregoing reasons, the Court: (1) GRANTS USCIS’s summary judgment motion

(Doc. No. 41); (2) DENIES Plaintiff’s cross summary judgment motion (Doc. No. 47); (3)

DISMISSES WITH PREJUDICE Plaintiffs’ third amended complaint (Doc. No. 24); and (4)

TERMINATES this case on the Docket.

IT IS SO ORDERED.

Date: August 3, 2022 s/Michael J. Newman

Hon. Michael J. Newman

United States District Judge