Amara Emuwa v. United States Department of Homeland Security

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 11, 2023 Decided September 3, 2024
No. 22-5153
AMARA EMUWA, ET AL.,
APPELLANTS
v.
UNITED S TATES D EPARTMENT OF HOMELAND S ECURITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-01756)
David L. Cleveland, Sr. argued the cause and filed the
briefs for appellants.
Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Brian P. Hudak, Jane M.
Lyons, and Derek S. Hammond, Assistant U.S. Attorneys. R.
Craig Lawrence entered an appearance.
Before: KATSAS , C HILDS , and P AN , Circuit Judges.
Opinion for the Court filed by Circuit Judge KATSAS .

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KATSAS , Circuit Judge: Asylum officers of the United
States Citizenship and Immigration Services (USCIS)
interview applicants and make written recommendations about
whether the agency should grant them asylum. We have held
that the deliberative-process privilege protects these
recommendations from disclosure. This appeal presents the
question whether the foreseeable-harm provision of the
Freedom of Information Act nonetheless requires disclosure.
USCIS concluded that releasing the deliberative portions of the
recommendations would foreseeably harm interests protected
by the privilege. The district court upheld that determination,
as do we.
I
A
FOIA requires federal agencies to make records publicly
available upon request unless one of nine exemptions applies.
See 5 U.S.C. § 552(a)(3)(A), (b). Exemption 5 protects “inter-
agency or intra-agency memorandums or letters that would not
be available by law to a party other than an agency in litigation
with the agency.” Id. § 552(b)(5). This exemption
incorporates privileges available to agencies in civil litigation,
including the deliberative-process privilege. U.S. Fish &
Wildlife Serv. v. Sierra Club, Inc., 592 U.S. 261, 263 (2021).
That privilege shields documents “reflecting advisory
opinions, recommendations, and deliberations” that agencies
use to make decisions. Id. at 267 (cleaned up). The privilege
ensures that “debate and candid consideration of alternatives
within an agency” are not subject to public inspection.
Machado Amadis v. Dep’t of State, 971 F.3d 364, 371 (D.C.
Cir. 2020) (cleaned up); see also Dep’t of Interior v. Klamath
Water Users Protective Ass’n, 532 U.S. 1, 8–9 (2001)

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(deliberative-process privilege “rests on the obvious realization
that officials will not communicate candidly among themselves
if each remark is a potential item of discovery”).
In 2016, Congress amended FOIA to impose an additional
requirement for agencies to withhold requested records. FOIA
Improvement Act, Pub. L. No. 114–185 § 2, 130 Stat. 538, 539.
Now, even if an exemption applies, the agency may withhold
the record only if it “reasonably foresees that disclosure would
harm an interest protected” by the exemption. 5 U.S.C.
§ 552(a)(8)(A)(i)(I). Thus, to withhold records covered by
Exemption 5 through the deliberative-process privilege, an
agency must show that releasing the specific records sought
“‘would’ chill future internal discussions.” Machado Amadis,
971 F.3d at 371.
B
The government may grant asylum to aliens who qualify
as refugees. 8 U.S.C. § 1158(b)(1)(A). A refugee is someone
who cannot return to his home country “because of persecution
or a well-founded fear of persecution” on account of certain
protected categories. Id. § 1101(a)(42).
USCIS, an agency within the Department of Homeland
Security, adjudicates applications for asylum. USCIS asylum
officers interview asylum applicants to determine their refugee
status. 8 C.F.R. § 208.9. The asylum officer prepares a written
assessment summarizing the interview, assessing the alien’s
credibility, and making a recommendation whether to grant or
deny asylum. J.A. 252–53, 309–11. The document is called
an Assessment to Grant or an Assessment to Refer, depending
on whether the recommendation is to grant or deny asylum.
Supervisors review these assessments in making the final
agency decision. If USCIS denies asylum, it refers the alien’s

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case to Immigration and Customs Enforcement (ICE), another
DHS component agency, for the commencement of removal
proceedings.
In Abtew v. DHS, 808 F.3d 895 (D.C. Cir. 2015), this
Court held that the deliberative-process privilege protects
Assessments to Refer. See id. at 898–900. We concluded that
the Assessment at issue was pre-decisional because it was
“merely a recommendation to a supervisor” and deliberative
because it was “written as part of the process by which the
supervisor came to th[e] final decision.” Id. at 899. More
generally, we explained that a “recommendation to a
supervisor on a matter pending before the supervisor is a classic
example of a deliberative document.” Id.
C
Four aliens who were denied asylum and an organization
assisting them filed FOIA requests for copies of the aliens’
Assessments to Refer and associated documents. USCIS
released the factual portions of the Assessments but withheld
portions containing analysis by the asylum officers.
Specifically, it withheld “opinions, deliberations, and
recommendation[s] regarding each applicant’s eligibility for
asylum,” including analysis of the applicants’ evidence and
“reasons for crediting or discrediting the veracity of the
applicants’ statements.” J.A. 310–11. The aliens and the
organization sued to obtain the full Assessments.
Before the district court, a USCIS official submitted a
declaration explaining the agency’s basis for withholding. She
explained that the disputed Assessments to Refer were “drafted
by asylum officers in order to explain the basis for their
recommendations” to supervisors and that the withheld
portions of the Assessments “explained the officer’s reasons

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for recommending that asylum be denied, discussed legal
justifications for a denial determination, and included other
reasons to refer the case to ICE.” J.A. 252–53.
The district court granted summary judgment to the
government. Applying Abtew, it held that the deliberative-
process privilege covers the requested Assessments. Emuwa v.
DHS, No. 1:20-cv-1756, 2021 WL 2255305, at *4 (D.D.C.
June 3, 2021). And applying Machado Amadis, it held that
USCIS had adequately shown that releasing the withheld
portions of the Assessments would foreseeably harm USCIS’s
interest in receiving candid recommendations from its asylum
officers. Id. at *8–9.
After the plaintiffs appealed, this Court decided Reporters
Committee for Freedom of the Press v. FBI, 3 F.4th 350 (D.C.
Cir. 2021), which held that an agency had failed to show
foreseeable harm from the release of certain documents
protected by the deliberative-process privilege. Id. at 369–72.
We then granted a consent motion to remand this case for
further consideration. Emuwa v. DHS, No. 21-5131, 2021 WL
8875652 (D.C. Cir. Nov. 12, 2021).
On remand, USCIS submitted a supplemental declaration
from Cynthia Munita, its Chief FOIA Officer, who elaborated
on the agency’s assessment of foreseeable harm. She explained
that the “adjudication of asylum applications” is a “sensitive”
matter implicating national interests and sometimes provoking
public controversy. J.A. 309. She confirmed that USCIS
officers who interviewed the aliens prepared the Assessments
at issue to recommend further action to their supervisors. Id.
at 310. Likewise, she confirmed that the withheld portions
contained “candid impressions, opinions, and analyses of the
evidence and … the bases” for the recommendations. Id. She

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explained that releasing the “specific pre-decisional
deliberations” at issue “would interfere with USCIS’s ability to
make sound judgments on asylum applications” because the
line officers “would temper their discussions with the
knowledge that their views and characterizations would be
made public.” Id. at 311; see also id. (“disclosure of this
information would cause asylum officers to no longer feel free
to discuss their evaluations of evidence or their analysis of the
asylum eligibility criteria in an open and frank manner”). She
stressed the importance to USCIS of “candid evaluation by
asylum officers.” Id. Finally, she elaborated that, in the
specific context of asylum adjudications, “revealing the kinds
of matters and information that the asylum officers considered
… would allow bad actors to better fabricate evidence or
testimony so that they might be granted asylum under false
pretenses.” Id. at 312. And that concern “would further stifle
the free flow of information between asylum officers and their
supervisors.” Id.
The district court again granted summary judgment to
DHS; it held that the agency had adequately justified the claim
of foreseeable harm under the standards required by Machado
Amadis and Reporters Committee. Emuwa v. DHS, No. 1:20-
cv-1756, 2022 WL 1451430, *1–5 (D.D.C. May 9, 2022).
The plaintiffs appealed. We have jurisdiction under 28
U.S.C. § 1291.
II
The parties agree that the deliberative-process privilege
applies to the four requested Assessments. The only contested
question is whether DHS adequately showed that disclosure of
their analysis portions, including cited source material, would
foreseeably harm interests the privilege protects. In FOIA

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cases, as in others, we review summary judgments de novo.
Machado Amadis, 971 F.3d at 368.
A
In Machado Amadis and Reporters Committee, this Court
explained how FOIA’s foreseeable-harm requirement applies
to records protected by the deliberative-process privilege. The
requirement prevents an agency from withholding requested
records unless it “reasonably foresees that disclosure would
harm an interest protected by” the relevant exemption. 5
U.S.C. § 552(a)(8)(A)(i)(I). Machado Amadis explained that
the agency therefore must consider the specific “information at
issue” in the case. 971 F.3d at 371. And it must show that
disclosure of the requested information “would” chill future
internal agency deliberations, not simply that it “could” do so.
See id. We held that the Department of Justice had adequately
justified withholding the deliberative portions of its “Blitz
Forms,” which are recommendations from subordinate
attorneys to superiors regarding the handling of pending FOIA
requests. Id. at 370. In crediting the agency’s prediction that
full release of the Blitz Forms would chill candid advice, we
stressed that “recommendations from subordinates to superiors
lie at the core of the deliberative-process privilege.” Id.
Reporters Committee likewise explained that “what is
needed is a focused and concrete demonstration of why
disclosure of the particular type of material at issue will, in the
specific context of the agency action at issue, actually impede
those same agency deliberations going forward.” 3 F.4th at
370. We explained it was not enough to simply assert “the
generic rationale for the deliberative process privilege itself,”
without also explaining “why actual harm would foreseeably
result from release of the specific type of material at issue.” Id.

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at 370–71. We held that the FBI declarations failed to satisfy
these requirements as a general matter, but we upheld
withholding certain communications where the foreseeability
of harm was “manifest” from the “very context and purpose”
of the communications. Id. at 371–72.
Measured against these benchmarks, Munita’s
supplemental declaration adequately demonstrates foreseeable
harm. As explained above, she confirmed that the withheld
material consisted of recommendations from subordinates to
supervisors on whether to grant pending asylum applications,
J.A. 309–10, which are a “classic example” of material
protected by the deliberative-process privilege, Abtew, 808
F.3d at 899. Her analysis focused on why release of the
“withheld portions of the four assessments at issue” (not
privileged information in general) “would” (not could)
“interfere with USCIS’s ability” to receive candid advice from
its line asylum officers. J.A. 310–11; see Machado Amadis,
971 F.3d at 371. And she laid out contextual considerations
tending to support the reasonableness of that judgment,
including the “sensitive” nature of asylum adjudications and
the specific concern about facilitating asylum fraud. J.A. 309,
312; see Reps. Comm., 3 F.4th at 372. The affidavit thus
showed “a link between the specified harm”—reduced candor
by line asylum officers making recommendations to
superiors—“and the specific information” withheld—the
officials’ analyses of applicants’ interviews. Reps. Comm., 3
F.4th at 371 (cleaned up). And this “chilling of candid advice”
is the precise harm that the deliberative-process privilege seeks
to prevent. Machado Amadis, 971 F.3d at 371.

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B
The plaintiffs’ counterarguments, focused on the quality
of the Munita declaration and on USCIS’s release of allegedly
similar materials, are unpersuasive.
1
The plaintiffs raise a host of challenges to the
thoroughness and credibility of the Munita declaration. To
begin, they contend that the declaration was not based on
“personal knowledge,” as required by Federal Rule of Civil
Procedure 56(c)(4). But Munita averred that the statements in
her declaration were “based on my personal knowledge, my
review of the relevant documents kept by USCIS in the course
of ordinary business, and upon information provided to me by
other USCIS employees in the course of my official duties.”
J.A. 309. On its face, the declaration confirms that Munita
reviewed the four Assessments at issue. Moreover, we have
held that government officers, in submitting declarations under
Rule 56(c)(4), may rely on information obtained from
subordinates in the course of performing their official duties.
See, e.g., DiBacco v. Dep’t of the Army, 926 F.3d 827, 833
(D.C. Cir. 2019); Cont’l Cas. Co. v. Am. Sec. Corp., 443 F.2d
649, 651 (D.C. Cir. 1970) (per curiam).
The plaintiffs object that we sometimes have demanded
further detail on how the declarant learned the relevant
information. But their cases turned on specific concerns about
the seeming lack of connection between the information and
the declarant’s ordinary official duties. See, e.g., Londrigan v.
FBI, 670 F.2d 1164, 1168, 1174–75 (D.C. Cir. 1981) (thoughts
of people interviewed by other FBI agents twenty years prior);
Campbell v. DOJ, 164 F.3d 20, 35 (D.C. Cir. 1998) (“events
that occurred more than 30 years ago”); Shaw v. FBI, 749 F.2d

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58, 63 n.2 (D.C. Cir. 1984) (affiant “did not claim any personal
participation in the investigation” at issue). This case presents
no such concerns: Munita has worked at USCIS since 2008,
has served as a line “Immigration Services Officer,” and now
is the agency’s Chief FOIA Officer. J.A. 308. We have no
reason to doubt her qualifications or knowledge to provide the
supplemental declaration.
The plaintiffs object that Munita did not discuss the age,
content, and character of the Assessments at issue. But as
explained above, she plainly considered their content and
character in making her foreseeable-harm assessment. As for
the age of requested documents, we held in National Security
Archive v. CIA, 752 F.3d 460 (D.C. Cir. 2014), that the
deliberative-process privilege does not vanish with the passage
of time. Id. at 464. Congress responded by inserting into FOIA
a 25-year limit for withholding documents based on the
deliberative-process privilege. FOIA Improvement Act § 2,
130 Stat. at 540 (codified at 5 U.S.C. § 552(b)(5)). But here,
the disputed Assessments were all created less than eight years
ago. We can thus discern no reason why Munita, in addressing
the documents at issue, had to specifically discuss their age.
The plaintiffs object that Munita failed to address each of
the four Assessments individually. But in Reporters
Committee, we held that agencies may show foreseeable harm
“on a category-by-category basis rather than a document-by-
document basis,” so long as each category contains “like
records” and the threat of harm is “independently demonstrated
for each category.” 3 F.4th at 369. Here the declaration made
clear that there were no material differences among the four
disputed Assessments, which summarized asylum interviews,
assessed the applicants’ credibility and evidence, and made
recommendations to superiors. J.A. 309–11. Having

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established a relevant category of like documents, Munita had
no obligation to address each document individually.
The plaintiffs object that Munita failed to conduct a line-
by-line review of the withheld materials to determine whether
any portion of them could be safely released. But she
confirmed that her office “review[ed]” the redactions to
“consider[] whether any information could be segregated and
released without causing a foreseeable harm to the agency.”
J.A. 312. And she explained the agency’s view that “no further
segregation” was possible without disclosing such information.
Id. at 312–13. USCIS thus did conduct the segregability
analysis required for assessing foreseeable harm. See 5 U.S.C.
§ 552(a)(8)(A)(ii); Leopold v. DOJ, 94 F.4th 33, 37–38 (D.C.
Cir. 2024). The plaintiffs further assert that the Assessments’
discussion of source materials could be safely segregated and
released. But discussion of source material was part-and-
parcel of the “analysis, opinions, deliberations, and
recommendations” contained in the Assessments and
addressed in the declaration. J.A. 310–11. And revealing how
asylum officers assessed those sources would facilitate asylum
fraud. Id. at 312. Even the plaintiffs’ complaint acknowledges
that “[i]f applicants know what sources are good, they can
tailor their own research accordingly.” Id. at 21. In short,
releasing the sources underlying the analysis would cause a
similar harm to the deliberative process as releasing the
analysis itself.
Finally, the plaintiffs highlight what they characterize as
significant errors in the declaration. First, they point to
Munita’s statement that asylum officers expect Assessments to
be reviewed “only by those within USCIS,” J.A. 310, even
though they are sometimes shared with other government
officials. But far from suggesting wide dissemination, the

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evidence indicates restricted access by other immigration or
law-enforcement agencies for specific operational needs. Id. at
228–30. That does not materially undermine the agency’s
concern that making Assessments publicly available upon
request would foreseeably chill agency deliberations. Second,
the plaintiffs highlight a statement in the declaration that
Assessments contain the “internal deliberations” of a
supervisory asylum officer as well as the line, interviewing
officer. Id. at 312. This minor error, on an issue that is
irrelevant to the concern about chilling the candor of the line
officers, does not undermine the overall credibility of the
declaration. See SafeCard Servs., Inc. v. SEC, 926 F.2d 1197,
1202 (D.C. Cir. 1991) (looking past immaterial errors in
agency declaration).
2
The plaintiffs raise further arguments based on the release
of other, assertedly similar immigration documents, as well as
the occasional release of Assessments to Refer. They contend
that these various releases undercut USCIS’s assessment of
foreseeable harm in this case.
First, the plaintiffs point to the routine release of three
different kinds of asylum documents—notices of intent to
deny, notices of intent to terminate, and records of
determination. But USCIS prepares these documents for
release to the affected alien: A notice of intent to deny informs
an asylum applicant lawfully present in the United States that
USCIS intends to deny the application and offers him the
opportunity to submit additional information. 8 C.F.R.
§ 103.2(b)(8)(iii)–(iv). A notice of intent to terminate performs
a similar function for individuals previously granted asylum
but found no longer eligible for it. Id. § 208.24(c). And a

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record of determination informs an unlawfully present alien of
an asylum officer’s determination as to whether the alien has
shown a credible fear of persecution and may progress to
further asylum proceedings. Id. § 208.30(g)(1). The release of
these final notices does not undermine the need to protect the
confidentiality of pre-decisional documents written for
consumption within the agency itself. The plaintiffs object that
these three kinds of immigration documents publicly convey
grounds for adverse asylum decisions, as do Assessments to
Refer. Again, though, the need to publicly justify a final
agency decision does not undercut the importance of protecting
internal deliberations about those same decisions before they
are made. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 151–52 (1975).
For similar reasons, the plaintiffs get no mileage from
USCIS’s release, in a subset of removal proceedings, of various
record documents and written decisions denying asylum. The
plaintiffs note that aliens placed in certain removal proceedings
are entitled to receive the “record of proceedings” from the
asylum interview, which includes the decision denying asylum,
the asylum application, all supporting information provided by
the applicant, comments provided to USCIS by other agencies,
and “any other unclassified information considered by the
asylum officer.” 8 C.F.R. §§ 208.9(f), 1240.17(a), (c). But the
“record of proceedings” does not include internal
recommendations to the decisionmaker: “[P]redecisional and
deliberative documents are not part of the administrative record
to begin with,” just as a law clerk’s bench memorandum would
not be part of the record on which a judicial decision is based.
Oceana, Inc. v. Ross, 920 F.3d 855, 865 (D.C. Cir. 2019)
(cleaned up).

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Finally, the plaintiffs point to the past release of
Assessments to Refer. But “an agency does not forfeit a FOIA
exemption simply by releasing similar documents in other
contexts.” Abtew, 808 F.3d at 900. The plaintiffs allege that
the Immigration and Naturalization Service, USCIS’s
predecessor agency, regularly released Assessments requested
under FOIA between 1998 and 2002, and that USCIS did so
from 2003 to 2005. But the record contains fewer than ten such
releases. Moreover, an alleged practice started by a different
agency and discontinued some two decades ago says little
about the sensitivity of—and concomitant need to protect
deliberations about—asylum adjudications today. In the past
two decades, the plaintiffs cite only two instances when USCIS
released Assessments to Refer—one to moot out a potentially
difficult FOIA case in 2020, J.A. 350–55, and one to impeach
the credibility of an alien’s testimony in a removal proceeding,
id. at 362–68. Those instances simply show that the
government is sometimes willing to suffer the consequences of
releasing Assessments in order to achieve some competing
institutional objective. That hardly suggests that the routine
release of Assessments through FOIA would not foreseeably
chill internal agency deliberations.
III
For these reasons, we affirm the summary judgment for
DHS.
So ordered.

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