United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 21-5148 September Term, 2022 FILED ON: MARCH 21, 2023 RICA GATORE, ET AL., APPELLANTS v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, APPELLEE Appeal from the United States District Court for the District of Columbia (No. 1:15-cv-00459) Before: MILLETT, PILLARD and RAO, Circuit Judges JUDGMENT This case was considered on the record from the United States District Court for the District of Columbia and on the briefs and oral arguments of the parties. The court has afforded the issues full consideration and determined they do not warrant a published opinion. See D.C. Cir. R. 36(d). For the reasons stated below, it is hereby ORDERED AND ADJUDGED that the judgment of the district court be AFFIRMED. When an individual applies for asylum, an asylum officer of the United States Citizenship and Immigration Services (USCIS) reviews the application and interviews the applicant. If the asylum officer recommends denying the application and concludes that the applicant is in the United States illegally, the officer prepares a document called an Assessment to Refer, which the officer forwards to a supervisor who determines whether to grant asylum or to direct the case to Immigration Court for removal proceedings. See, e.g., Abtew v. U.S. Dep’t of Homeland Sec. (Abtew II), 808 F.3d 895, 898 (D.C. Cir. 2015); Abtew v. U.S. Dep’t of Homeland Sec. (Abtew I), 47 F. Supp. 3d 98, 101-02 (D.D.C. 2014), aff’d, 808 F.3d 895 (D.C. Cir. 2015). An Assessment to Refer typically includes a factual narrative, the asylum officer’s impressions of the applicant’s credibility and consistency, and a recommendation whether to grant asylum. See Abtew II, 808 F.3d at 898. Facts recited in an Assessment may include the applicant’s biographical details, the 1 applicant’s stated reasons for seeking asylum, and other factual statements the asylum applicant made to the asylum officer. Eggleston Decl. ¶ 29 (J.A. 1537). The Freedom of Information Act (FOIA) requires federal agencies to disclose their records upon request unless the records sought fall within an enumerated exemption. 5 U.S.C. § 552(a)- (b); see Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 7 (2001). As relevant here, FOIA Exemption 5 shields from disclosure “inter-agency or intra-agency memorandums or letters” covered by the “deliberative process privilege.” 5 U.S.C. § 552(b)(5). Even when a record implicates Exemption 5, the agency must release “[a]ny reasonably segregable portion of [the] record” disclosure of which would not reveal agency deliberations, id. § 552(b), unless such portions are “inextricably intertwined with exempt portions,” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). *** With the assistance of the nonprofit organization Catholic Charities, Rica Gatore, a native and citizen of Burundi, filed a FOIA request with the Department of Homeland Security (Department or DHS) in 2014, seeking the Assessment to Refer associated with her asylum application. The Department at that time was refusing to release any portion of Assessments to Refer, generating …
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