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The U.S. Justice Department (DOJ) must turn over a memorandum on state and local enforcement of the nation’s immigration laws to civil liberties groups that challenged a policy change, the 2d U.S. Circuit Court of Appeals has ruled. National Council of La Raza v. Department of Justice, No. 04-5474-cv. The court said that DOJ’s 2002 memo, which said that state and local police had the authority to enforce civil violations of the immigration laws, could have been protected by the “deliberative process exemption” under the Freedom of Information Act, but that the department had waived that protection. The ruling, written by Judge Robert Katzmann, affirms the decision of Judge Lewis A. Kaplan of New York’s southern district, who had found that the department had waived the exemption by incorporating the memo into its policy. In a memorandum published in 1996 by DOJ’s Office of Legal Counsel, the department had stated its view that state and local authorities lacked the power to enforce civil provisions of federal immigration law, such as overstaying the term of a visa or entering the United States without proper documentation. A change in that position was publicly announced in 2002 when Attorney General John Ashcroft said that information on aliens who violate some of those civil provisions would be entered in the National Crime Information Center database, and that local police had the authority to arrest violators and transfer them to federal immigration officials. During a press conference, Ashcroft referred to an Office of Legal Counsel memorandum that, in his words, recognized that this “narrow mission is within the inherent authority of the states.” In addition, Kris Kobach, counsel to the attorney general, told an FBI policy board meeting that the Office of Legal Counsel “opinion doesn’t say that immigration enforcement is an inherent authority of the states. It merely says making an immigration arrest to assist the federal government lies within the inherent authority of the states.” A coalition of immigration lawyers and civil liberties groups filed suit under the Freedom of Information Act, 5 U.S.C. 552, seeking to force disclosure of the memo. Kaplan held that the memo would not normally be subject to disclosure. However, the public statements of DOJ officials amounted to a waiver of the exemption. Kaplan said that “The Department’s view that it may adopt a legal position while shielding from public view the analysis that yielded that position is offensive” to the Freedom of Information Act. The 2d Circuit discussed Exemption 5 of the act, which permits an agency to withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” Katzmann said that courts “have interpreted Exemption 5 to encompass traditional common-law privileges against disclosure, including the work-product doctrine, and executive, deliberative process.” Designed to encourage candid communication among officials, he said, the deliberative process privilege holds only as long as the memo is not expressly adopted or incorporated as official policy. “In the instant case, the repeated references” to the memo “by the Attorney General and his high-ranking advisors, the substance of their comments, and the way in which their comments were used-that is, to assure third parties as to the legality of the actions the third parties were being urged to take-are sufficient to establish that the Department incorporated the Memorandum into its new policy regarding state and local immigration law enforcement authority,” Katzmann said. The references to the memo demonstrate that the department regarded it “as the exclusive statement of, and justification for, its new policy on the authority of the states to enforce the civil provisions of immigration law,” Katzmann said.

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