Claudia Slovinsky, Esq. 233 Broadway, Suite 2005 New York, NY 10279

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Chief Clerk

5107 Leesburg Pike, S11ite 2000 Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - NEW P.O. Box 1898 Newark, NJ 07101

Name: QATANANI, MOHAMMAD M. A 076-133-969 Riders: 076-123-694 076-123-695 076-123-696 076-123-697

Date of this Notice: 5/13/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Enclosure

Panel Members: Creppy, Michael J. Malphrus, Garry D. Mullane, Hugh

Sincerely,

Donna Carr Chief Clerk

For more unpublished BIA decisions, visit www.irac.net/unpublished

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

Cite as: Mohammad M. Qatanani, A076 133 969 (BIA May 13, 2014)

! '

U.S. Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

Files: A076 133 969 - Newark, NJ A076 123 694 A076 123 695 A076 123 696 A076 123 697

In re: MOHAMMAD M. OATANANI SUMAIA M. ABUHNOUD OMAR M. OATANANI AHMAD M. OATANANI ISRA M. OAT ANANI

IN REMOVAL PROCEEDINGS

INTERLOCUTORY APPEAL

Date:

ON BEHALF OF RESPONDENTS: Claudia Slovinsky, Esquire

ON BEHALF OF DHS: James T. Dehn Associate Legal Advisor

MAY l 3 2014

The Department of Homeland Security ("DRS") filed an interlocutory appeal from the Immigration Judge's decision dated January 22, 2013, which granted the respondents'1 motion for subpoenas to the Newark, New Jersey Custodian of Records for both the Federal Bureau of Investigation ("FBI") and the United States Customs and Immigration Enforcement ("ICE"), for the production of certain documents. The respondents oppose the appeal. On March 3, 2014, a three-member panel of the Board heard oral argument from the parties. The DHS's interlocutory appeal will be sustained and the Immigration Judge's decision will be vacated.

Although this Board does not ordinarily entertain interlocutory appeals, we have ruled on the merits of interlocutory appeals where we deemed it necessary to address important jwisdictional questions regarding the administration of the immigration laws, or to correct recurring problems in the handling of cases by Immigration Judges. See e.g., Matter of Guevara, 20 I&N Dec. 238 (BIA 1990, 1991); Matter of Dobere, 20 I&N Dec. 188 (BIA 1990). Since this matter involves an important jwisdictional question regarding the administration of the immigration laws, we will accept this case by certification and address the merits of this interlocutory appeal. Matter of Ruiz-Campuzano, 17 l&N Dec. 108 (BIA 1979); Matter of Ku, 15 I&N Dec. 712 (BIA 1976); Matter of Guevara, 20 l&N Dec. 238 (BIA 1990, 1991); Matter of Dobere, 20 l&N Dec. 188 (BIA 1990).

This matter was last before the Board on October 28, 2009, when we sustained the DHS's appeal of the Immigration Judge's decision dated September 4, 2008, which granted the

1 The respondents in this case are a husband, wife, and three children. The husband (A076 133 969) is the lead respondent and will be referred to as the "lead respondent" or "Mr. Qatanani."

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

Cite as: Mohammad M. Qatanani, A076 133 969 (BIA May 13, 2014)

A076 133 969 et al.

respondents' application for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a). We remanded the record to the Immigration Judge with instructions to further evaluate certain specific evidentiary issues and to assess whether the lead respondent carried his burden of establishing eligibility for adjustment of status; in particular, whether the lead respondent established that he is not inadmissible under section 212(a)(3)(B)(i) of the Act for engaging in terrorist activities (BIA Dec. at 3-4 ), and whether he established that he is not inadmissible under section 212(a)(6)(C)(i) of the Act for making material fraudulent misrepresentations on his application for adjustment of status (BIA Dec. at 4-5).

On January 10, 2012, the respondents made Freedom of Information Act ("FOIA") requests to the FBI and various DHS components (collectively referred to herein as "the government") for documents relating to the lead respondent. The D HS asserts that in response to those requests the government conducted a search, determined that certain information is protected from disclosure under FOIA's statutory exemptions, and released the non-exempt, segregable portions of responsive documents (DHS Brief in Support of Interlocutory Appeal at 6-7; I.J. at 5). On June 29, 2012, and August 24, 2012, the respondents filed complaints against the Department of Justice and the DHS in the United States District Court for the District of New Jersey, seeking to compel the disclosure of records withheld in full or in part and, if necessary, to compel further searches for responsive documents ("the FOIA litigation"). See Qatanani v. Dep 't of Justice, 2:12-cv-04042-KSH-PS (D.N.J.) (filed June 29, 2012); Qatanani v. Dep't of Homeland Security, 2:12-cv-05379-KSH-PS (D.N.J.) (filed August 24, 2012). Notwithstanding the FOIA litigation, the respondents filed their motion for subpoenas with the Immigration Judge.

The Immigration Judge apparently without conducting a hearing, found that the respondents satisfied the regulatory requirements for the issuance of the subpoenas, and that despite the respondents' efforts through FO IA and the FO IA litigation, they have been unsuccessful in obtaining the requested documents or have obtained documents that were heavily redacted pursuant to various FOIA exemptions (I.J. at 3-5). Relying on Oliva-Ramos v. Att 'y Gen., 694 F.3d 259 (3d Cir. 2012), 2 the Immigration Judge concluded that the respondents demonstrated that the documents they seek are essential to the issues to be resolved in this case, and he issued subpoenas which command the FBI and ICE to produce certain documents.3

2 In Oliva-Ramos, the Third Circuit concluded that the alien's subpoena request was essential to his claim that ICE engaged in "egregious or widespread violations and alleged constitutional violations" because the subpoenaed materials could have shed light on the contested nature of the alien's alleged consent for the ICE enter the premises, and the testimony of officers could have been used to adduce additional facts that may have altered the analysis of the constitutional claims. Oliva-Ramos v. Att'y Gen., 694 F.3d 259, 273 (3d Cir. 2012).

3 The Immigration Judge's subpoenas command the FBI and ICE to produce (I) records relating to the lead respondent covering the time period between his interview with FBI and ICE agents on February 7, 2005, and August 26, 2005, which is when the FBI issued a letter to the United States Customs and Immigration Service stating that the lead respondent's adjustment application should not be suspended on the ground that the FBI has interposed an objection; (2) FBI and ICE agents' notes and reports of the February 2005 meeting; and (3) unredacted copies of documents released by ICE on July 15, 2012, pursuant to the respondents' FOIA request. See Appendix B attached to subpoena for documents issued to ICE, January 18, 2013.

2

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

Cite as: Mohammad M. Qatanani, A076 133 969 (BIA May 13, 2014)

A076 133 969 et al.

We will vacate the Immigration Judge's decision and quash the subpoenas because they are premature and overbroad, the Immigration Judge did not identify or establish a procedure for addressing any privilege issues, and the Immigration Judge has not sufficiently explained how the documents the respondents seek are "essential" to issues material to their case. 8 C.F.R. § 1003.35(b).

Although the Immigration Judge did narrow the respondents' initial request (1.J. at 6), the subpoenas remain impennissibly overbroad. For example, the subpoena issued to the ICE orders that, in addition to the production of "FBI Agent Angel L. Alicea's notes from the February 7, 2005 meeting between Dr. Qatanani and the FBI and ICE," the ICE must produce "notes taken by any other federal government agent present at the meeting" (I.J. Subpoena to ICE,� 2). FBI Special Agent Alicea is not employed by the ICE, and the command for the ICE to produce notes from an individual not under its control, or notes taken by other federal agents, is overbroad. Similarly, the subpoena to the FBI is overbroad as it commands the agency to produce "notes taken by any other federal government agent present at [the February 7, 2005] meeting" (I.J. Subpoena to FBI, 1f 3).

The subpoena power bestowed upon Immigration Judges is limited in nature. See section 240(c)(2)(B) of the Act; 8 C.F.R. §§ 1003.35, 1208.12(b); Federal Rules of Civil Procedure Rule I, describing the scope of the rules; Matter of Henriquez Rivera, 25 l&N Dec. 575, 579 (BIA 2011) (rejecting the Immigration Judge's determination that the OHS is required to provide the Immigration Court with an applicant's complete administrative record from the USCIS); Matter of Benitez, 19 l&N Dec. 173 (BIA 1984) (noting that the Federal Rules of Civil Procedure are not applicable in deportation proceedings, and there is no requirement that a request for discovery be honored). The Immigration Judge acknowledged that general discovery is prohibited in these proceedings, and expressed concerns about a "fishing expedition" (l.J. at 3).

As noted by the Immigration Judge, several of the respondents' requests are related to the lead respondent's "claim that he did not provide material support to a terrorist organization," and that he seeks potential "exculpatory evidence" (l.J. Dec. at 3). The regulations require the party seeking the subpoena to state what they "expect to prove" from the documents. 8 C.F.R. § 1003.35(a)(2). While exculpatory evidence may exists, a subpoena based on the hope that such evidence will be uncovered is impermissible discovery. Matter of Benitez, supra; Matter of Gonzalez, 16 I&N Dec. 44, 46 (BIA 1976). Oliva-Ramos may not be interpreted as a basis for authorizing Immigration Judges to order discovery; generalized discovery requests, from either party, are inappropriate in removal proceedings. Matter of Khalifah, 21 I&N Dec. I 07, 112 (BIA I 995) (no right to discovery in deportation proceedings); Marroquin-Manriquez v. INS, 699 F.2d 129, 136 n.l l '(3d Cir. 1983), cert. denied, 467 U.S. 1259 (1984) (availability of information under FOIA undercut the showing of need under 8 C.F.R. § 287.4(a)(2).

With regard to the ''essentiality" requirement, the Immigration Judge found that "although Respondent has the burden of proving his eligibility for adjustment of status, DHS has complete control over many of the documents necessary to meet this burden" (l.J. Dec. at 4-5). However, the Immigration Judge did not sufficiently explain how records in the government files from 2005 are "necessary" for the respondent to meet his burden.

3

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

Cite as: Mohammad M. Qatanani, A076 133 969 (BIA May 13, 2014)

A076 133 969 et al.

This situation is distinguishable from Oliva-Ramos, where the alien did not receive FOIA documents in time to present before the Immigration Court, and the evidence sought in that case - ICE policy and practice manuals on search and seizure practices and its practices with respect to consent and entry of dwellings - was directly tied to the relevant issue in dispute (i.e., whether the government acted in an egregious manner or engaged in widespread constitutional violations in a search and seizure). Oliva-Ramos v. Atty Gen., supra, at 273.

In this case, the respondents have already received documents from their FOIA efforts to present in Immigration Court,4 and the link between the evidence sought and the relevant issues remains questionable. The lead respondent's encounter with the Israeli military occurred in 1993, and his responses on the adjustment application were made in 1999. Unlike Oliva-Ramos, each of these events predates the evidence the respondents seek from the government. While the respondents may be dissatisfied with the extent of the government's FOIA production, the fact remains that they did obtain evidence. Moreover, the documents in question here were not created contemporaneously with the relevant events in Israel or the lead respondent's answers on the 1999 adjustment application; but rather, the evidence was created years later by third parties. While the lead respondent hopes they will bear on the issue of his potential inadmissibility, it is not clear from the record that it would. In short, based on the record currently before us, both the applicability of Oliva-Ramos and the "essentiality" of such evidence appear tenuous, and have not been adequately tied to the issues that were remanded. Thus, the "essentiality" requirement has not been met based on the current record.

Further, the nature of the evidence sought may implicate privilege and · confidentiality concerns, or relate to national security issues to which the respondents are not entitled in these proceedings.5 Neither the Immigration Judge's decision, nor the subpoenas identify a procedure for addressing issues of privilege or confidentiality. In the event that future subpoenas are

4 We take administrative notice of documents filed in the FOIA litigation, including the Defendants' Notice of Motion for Summary Judgment, which reveal that in response to the respondents' FOIA requests, the government released the non-exempt, segregable portions of responsive documents. See generally 8 C.F.R. § 1003.l (d)(3)(iv) (permitting this Board to take administrative notice of commonly known facts, such as current events and the contents of official records). Specifically, the government has produced the non-exempt, portions of a contemporaneous transcript of the February 7, 2005, meeting, and documents relating to the lead respondent's encounter with the Israeli military. See Qatanani v. Dep 't of Homeland Security, 2: 12-cv-05379-KSH-PS (D.N.J.), Document 26 (filed March 22, 2013); Appendix B attached to subpoena for documents issued to ICE, January 18, 2013.

5 Section 240(b)(4)(B) of the Act, which addresses an alien's rights in removal proceedings, expressly states "these rights shall not entitle the alien to examine such national security information as the Government may proffer in opposition to the alien's admission to the United States or to an application by the alien for discretionary relief under this chapter." To the extent that classified information is presented in immigration court, proper procedures must be followed. See Operating Policies and Procedures Memorandum 09-01: Classified Information in Immigration Court Proceedings (2009).

4

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

Cite as: Mohammad M. Qatanani, A076 133 969 (BIA May 13, 2014)

A076 133 969 et al.

issued, 6 the Immigration Judge should clearly establish a procedure for handling such issues; this would include for example requiring in camera inspection of any documents to which a claim of privilege is asserted.

Finally, we note that during oral argument before the Board both parties indicated a willingness to continue proceedings until a resolution is reached in the pending FOIA litigation. Given the potential for complete resolution or at least a narrowing of the relevant issues in that venue, it may be premature to conclude that the respondents have made "diligent efforts without success," as required by the regulations. 8 C.F.R. § 1003.35(b)(2). As such, on remand, in the interest of judicial economy, the Immigration Judge and parties may wish to further explore the option of a continuance for a reasonable period to try to await the District Court resolution of the FOIA litigation which may resolve any issues that underlie the subpoena request.

Accordingly, the following orders will be entered.

ORDER: The DHS's appeal is sustained.

FURTHER ORDER: The respondents' motion to expedite is denied as moot.

FURTHER ORDER: The Immigration Judge's January 22, 2013, order issuing subpoenas to ICE and the FBI is vacated and the record is remanded to the Immigration Court without further action.

6 Nothing in this decision should be interpreted as precluding the Immigration Judge from issuing subpoenas in the future. However, if such subpoenas are issued, a hearing should be conducted and findings of fact rendered to establish that the regulatory standards are met, the subpoenas are narrowly tailored and not tantamount to general discovery, and proper procedures are established for the production of any documents.

5

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

Cite as: Mohammad M. Qatanani, A076 133 969 (BIA May 13, 2014)