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Department of Justice Office of Information Policy Yale-loehr Foia Response Immigration 2010

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u.s. Department of Justice
Office of Information Policy

Telephone: (202) 514-3642

Washington, D.C. 20530

APR 29 2010
Mr. Stephen Yale-Loehr
Miller Mayer, LLP
202 East State Street
Suite 700
Ithaca, NY 14850



Dear Mr. Yale-Loehr:
While processing your Freedom of Information Act (FOIA) request dated January 2,
2007, for copies of all legal opinions written by the Department of Justice's Office of Legal
Counsel (OLC), concerning immigration issues since January 1, 2005, OLC referred six
documents, totaling thirty-two pages, to this Office for processing and direct response to you on
behalf of the Office of the Attorney General. For your information, your request was received in
this Office on January 18, 2007.
In an e-mail to you dated May 14, 2009, you were advised that two of the referred
documents, totaling twenty-five pages, were already publicly available online, and web addresses
were provided to you for these documents. Additionally, you were advised that we were
continuing to process the remaining documents referred by OLC, and would respond to you again
once our disclosure determinations had been made. Our processing of the four remaining
documents, which total seven pages, is now complete.
I have determined that three documents, totaling four pages, are appropriate for release in
part with excisions made pursuant to Exemption 6 of the FOIA, 5 U.S.C. § 522(b)(6).
Exemption 6 concerns information the release of which would constitute a clearly unwarranted
invasion of the personal privacy of third parties. Although portions of this material could be
withheld pursuant to Exemption 5 of the FOIA, 5 U.S.C. § 522(b)(5), I have determined in this
instance that such material may be disclosed as a matter of agency discretion. Additionally, one
document, totaling three pages, is being withheld in full on behalf of OLC, pursuant to
Exemption 5 of the FOIA. Exemption 5 pertains to certain inter- and intra-agency
communications protected by the deliberative process privilege. For your information, the
document being withheld consists of a Department of Justice memorandum detailing a proposed
course of action in an immigration matter and is not appropriate for discretionary release.
If you are not satisfied with my response to this request, you may administratively appeal
by writing to the Director, Office of Information Policy, United States Department of Justice,


Suite 11050,1425 New York Avenue, NW, Washington, DC 20530-0001. Your appeal must be
received within sixty days from the date of this letter. Both the letter and the envelope should be
clearly marked "Freedom of Information Act Appeal."

Carmen L. Mallon
Chief of Staff

, u.s. Department of Ju~
Office of Legal 'Counsel

WashingtON, D. C. 20530

Office of the Assistqnt Attorney General






Steven G. Bradbury



Acting Assistant Attorney General


IFOIA.Exemption al

To obtain the Attorney General's approval of the proposed Attorney General


Order and accompanying Opinion in

DEADLINE: There is no deadline in this matter, but expeditious disposition is important.
On February 10,2006, pursuant to his authority under 8 C.F.R. § l003.1(h) (2006), the
Attorney General directed the BIA to refer for review its decision in
matter, and stayed the
decision pending review. The Office of Legal Counsel recommends that the Attornev General
'We are
sign the proposed Order and accomp~ying Opinion in
also sending herewith the record from the proceedings below.
jFOIA Exemption 6



The respondent, a native and a citizen of the Dominican Republic and a permanent
resfdent of the United States, was convicted of rape by force and foUnd removable because his
rape conviction qualifies as'an aggravated felony under section lOl(a)(43)(A) of the Immigration
and Nationality Act,"8 U.S.C. § 1101(a)(43)(A) (2000). The immigration judge concluded,
however, that it was more likely ~han not th~t respondent would be tortured if returned to the
Dominican Republic and therefore granted a deferral of removal Wlder the Convention Against
Torture ("CAT"). In a brief order, the Board of Immigration Appeals ("BIA") affirmed.
The immigration Judge in this case proposed to the respondent that he pursue CAT relie~
but then inappropriately supplanted respondent's original claim for -relief with the judge's ,own
theory. The immigration judge decided to grant relief on the basis of her theory, respondent's
uninfonned speculation, and insufficient evidence in the Department of State's Country Report
on the Dominican Rep~blie. The evide,nce does not support the possibility that respondent is

more likely tha~ not to be tortured if returned to the Dominican Republic.
'The Office of Legal Counsel has drafted the attached proposed opinion at the request of
the Office of the Attorney 'General and the Deputy Attorney General. The opinion disapproves

the BIA's decision affirming CAT relief, denies the respol\dent's application for deferral of
removal, and affirm~ the immigrationjudge's February 3, 2005 order of removal and deportation
to the Dominican Republic. The opinion concludes, inter alia, that respondent has failed to meet
his burden of proof under the regulations implementing deferral ofremoval under the CAT~ See
8 C.F.R. § 1208. 16(c)(4) (2006).

Order and Opinion in


We recommend that vou sign the attached proposed Attorney General
IFOIA ~~emption 6


The Attorney GelJ-eral,
Washington, D.C.




IFOIA Exemption"S I

(BIA July 7, 2005)

In re:

On February 10, 2006, the Board of Immigration Appeals (BIA) referred this
matterto me, pursuant to 8 C.F.R. § I003.1(h)(1)(i) (2006), and the Board's decision was
stayed pending my review. For reasons set forth in the accompanying. opinion;, I .
disapprove tl1e BIA's decision, deny the respondent's application for deferral of removal,
and affum th~ irrunigrati on judge's February 3, 2005 order of removal and d'eportation to
the Dominican Republic. Further, if respondent moves to reopen and the BIA grants the
motion, I direct that the case be assigned to another randomly selected immigration judge
fo~·decision. In light of the respondent's continued detention, I direct the BIA and
immigration judge to cond~ct any further proceedings as promptly as possible c0I?-Sistent
with a full and fair consideration. of the issues.



e.. ~· •




~ffi(t llf t~t Att(ttn~l! ~tntrnl
llagqingttttt, JB. Q!.2a,S:3n
A. G. ORDER NO. 2756-2005
IForA Exemption ~

(BIA Nov. 30, 2000)


This matter was referred to the Attorney General by the'Acting' Commissioner, of the
Irrimigration and Naturalization Service from the decision of the Board of Immigration Appeals, - - - - - - - 1 - 1
("BIA") granting respondent asylum.
{BIA Nov.. 30~· ForA Exemption 6
2000). "The BIA's decision is vacated in its entirety, respondent is found excludable and"o~dered
excluded, respond~nt's -application for. asylum is denied, anq respondent~s. applications for
withholding of deportation and deferral of removal to Algeria are remanded' for furth~
pr-oceedings consistent with this opinion.
. '


~~ft .
Attorney General





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