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Case 14-5169, Antenna Abtu Appellant, the United States Department of Homeland Security.

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Mr. Cleveland for the appellant and Mr. Mayor for the appellee.

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Good afternoon.

[00:00:18] Speaker 04:
Good afternoon.

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May it please the Court, my name is David Cleveland, counsel for appellant.

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I'd like to reserve

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I'd like to reserve four minutes of time for rebuttal.

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This case is about an agency that wants to ambush and asylum applicants with double hearsay documents.

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Well, that may not be your strongest argument, given that the other statute says it must have a reasonable time.

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And we'd also like to talk about the inconsistencies of the agency.

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In the past, the DHS has disclosed assessments.

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Does that matter though?

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Pardon me?

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Does it matter what it has done in the past in this particular case or whether it's pre-decisional and deliberative?

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It gives us information about the strength of their arguments.

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They disclose them in the past, and now they say we don't want to disclose them for some reason.

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What is that reason?

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Why didn't that reason operate before when they were disclosing them all over the place?

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It's evidence that the reason they're giving is not a real reason.

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It is something that they pulled out of case law to avoid the assessments.

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It seems to me that maybe this is confusing or conflating two different issues.

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One is whether this is pre-decisional and deliberative and thus covered under Exemption 5.

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And the second is whether the agency

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has to disclose the evidence at the ultimate hearing or provide reasons for its decision, which strikes me as separate issues than the FOIA issue.

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And certainly under the statute, when you get to the immigration court, it does have to disclose the evidence it's using against you.

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There is a conflation, that's true, Your Honor, but they operate together.

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There's some confusion about when does the reasonable opportunity arise.

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Eight United States Code 1229A says the alien shell have a reasonable opportunity to examine the evidence.

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When does that begin?

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The district court judge erred by saying, that gives you the applicant no rights in the abstract.

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It only gets triggered when the evidence is actually introduced in the evidence.

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That's what she says, I think, at footnote 12.

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The DHS disagrees with that, and they say, oh no, if we're going to use it, we must give it to you before the hearing starts.

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That's what they say at 8160.

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How does that affect the current issue, the FOIA issue, which strikes me as a different issue?

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If they're going to use it, it's apparently the assessment is very valuable.

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They say maybe we're going to use this.

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It's a very valuable document.

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Then their argument is, oh, we can't disclose it because we have to protect the asylum officer.

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Then they're throwing that argument out the window.

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That should tell the court that the reasons that they're giving, oh, we must protect the asylum officer, is not real.

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Well, that's the generic reason why there's a deliberative process.

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I don't think

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that an agency has to come in case after case and show the connection in the individual case between, say, some memo that's prepared by a staff lawyer and the ultimate decision in a particular case, rather than the deliberative process privilege is justified based on its overall objectives and how it generally applies.

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And then once you know that, the two requirements are just pre-decisional and deliberative in a particular case.

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Well, I would agree with you in general, Your Honor.

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However, in this case, it is no longer a pre-decisional.

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After the supervisor initialed it, it is elevated.

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It becomes the final decision.

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But the initialing of it is itself a decision, is the final decision, right?

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Indeed.

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And the initials go on the three-page assessment.

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Indeed, the DHS... Some agencies will have all these memos, just drawing on experience, will have all sorts of memos packed into a packet and then the final decision maker will do a one line approved, disapproved.

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So the only final decision is the one sentence or one line document so that all the other memos don't get disclosed.

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That strikes me as similar, and that's always been done, I think, to protect the confidentiality of the underlying documents.

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It strikes me as similar to what this is, your initials here, the final decision maker is different from the assessment.

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Well, to some extent.

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However, the assessment itself is a live document that they want to use.

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Right.

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Basically, they agree with me at A268.

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They say the assessment is prepared by the asylum officer and becomes the final decision of the agency when the assessment is approved by the supervisor.

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That's what they say at A268.

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The judge disagreed and said, oh, the referral notice is the final decision.

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It is also true that DHS says, oops, another document is the final decision, the referral notice.

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DHS is inconsistent in their own briefs.

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By the way, the referral notice is not the final decision.

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It is a worthless piece of paper.

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It's found at 8207.

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It says, we deny your case because of inconsistency, singular, in parentheses, inconsistencies, plural.

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So is it one inconsistency or more than one?

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Between your testimony and or, what does that mean, and or?

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Other evidence.

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What is the other evidence?

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But what does it do?

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It doesn't tell us anything.

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It is annoying that the asylum officer is allowed to use sources outside the record and put them in the assessment and then not tell the applicant about it.

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I complained about that in my brief.

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But if it's used, maybe I'm wrong about this, but I want to ask this.

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If the assessment is used in the proceeding for the immigration court, it will be disclosed.

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to you.

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If it's not used, it won't be disclosed.

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That's fair.

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Okay.

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The question is... That's fair or that's correct?

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It's a fair statement of what they do in immigration.

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It's fair and fair to the applicant.

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In the middle of the hearings, here comes a document that has who knows what's inside.

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All right.

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I thought your point in part was going to be that on the record that we have before us, it is unclear

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Maybe you don't want to make this argument.

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It is unclear whether the assessment is the final decision of the agency.

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I understand your argument about the agency views it as an important document, but is it pre-decisional or not?

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And the agency, let me just finish my thought here, the agency has the burden here

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to show it's entitled to this exemption.

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And it may well be, but the question is whether on the record we have, we can determine when the final decision, what is the document that is the final decision by the agency.

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And we have at least three different proposals here.

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Well, we have the assessment, we have the referral notice.

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We have the initials.

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Well, the initials go on the assessment.

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Is the assessment the final decision?

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Is the initial assessment the final decision?

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Is the notice to refer the final decision?

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And at least cases from the Supreme Court and this court have focused on the importance of knowing what is the role of the document in the agency's decision-making process for purposes of determining whether or not it is pre-decisional.

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And that's really the issue here, isn't it?

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What is the role of this assessment?

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In other words, there's a citation to the agency manual that talks about supervisors supposed to check it for errors of law but give substantial deference.

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And if you don't agree, you're supposed to chat with the

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Asylum officer about it and see if you can reach agreement and if you can't reach agreement you bucket on up to the director or deputy director who may send it further over to the research department.

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So I guess my question is can we tell is the final decision about denying asylum was that made by the asylum officer in the assessment?

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Was it made at the point the supervisor determined that the asylum officer's assessment was OK?

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Or was the decision not made until we have what you call this useless document, this referral?

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I would suggest that the asylum officer's

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first assessment is that Mr. Attu loses.

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And then when the supervisor acquiesces in that, if he does acquiesce, then that is elevated and it becomes the final decision.

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Then it goes to the immigration court, right?

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Correct.

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And that's now... So at the initialing, your argument is it ceases to be pretty decisional.

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Indeed.

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Exactly.

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And the importance of the assessment is demonstrated by the fact that they really want to use it and they don't want to give it to them.

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That proves how valuable it is.

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Even if it's final or not, it's a very valuable document.

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Well, I can see a distinction between a document that the government thinks is important for making its case and a document that memorializes a final decision regarding

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why it's taking the position that the application should be denied.

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Well, those are differences, Your Honor.

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I would suggest that most of the time when they're used in immigration court, it's because it's allegedly a prior inconsistent statement.

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You told the asylum officer X, now you're telling us something different.

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I'm somewhat surprised the government lawyer says, oh, we don't use it for those purposes.

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Well, what other purpose is it being used for?

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If there's something in the assessment that is not factual from the applicant, then my goodness, that raises even more due process concerns.

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The asylum officer had a private conversation with the dictator of Ethiopia, and he gets information, and he puts that in the assessment.

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And then I'm supposed to fight against that in immigration court?

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That'd be very unfair.

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How reliable is this other information that the asylum officer relies upon?

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I complained about that.

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I said, asylum officers can use sources not available to the applicant.

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And then in response, the DHS said, at A165, you can submit a FOIA request seeking the material required and relied upon by the officer.

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They tell us, and the HCFR 208.12 says, there's no discovery in immigration court.

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Go do a FOIA.

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OK, now we're doing the FOIA.

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Now, they have the document.

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Why are they making me make applications to faraway places?

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The Dent case, the Ninth Circuit said, is Kafkaesque for the court to treat applicants this way.

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And the Third Circuit and the Totime case said the same thing.

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You have the documents right here.

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You're telling the guy, go over there and make requests and have big long delays.

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For what purpose?

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That interferes with the inner effective administration of the immigration courts.

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It's a big waste of time.

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Why does the government do that to us?

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It's unfair that the government would treat asylum applicants this way.

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Well, why don't we hear from Council for the Government, and then we'll give you some time for rebuttal.

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May it please the Court, my name is Peter Mayer, Council for the United States Government.

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You're the Department of Health and Human Services.

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The chief question that this case presents is whether the assessment to refer, the disputed document in this case, is covered by Exemption 5.

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And that, in turn, depends on whether the document is privileged.

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And the privilege that applies is the deliberative process privilege.

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In order for a document to come within the deliberative process privilege, it must be pre-decisional and it must be deliberative.

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I don't think that there's any question that at the time the assessment to refer is created, that it is pre-decision.

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What's the final decision?

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Final decision is not the assessment to refer.

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It's the notice of referral.

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Let me refer the court to page 183 of the joint appendix.

[00:14:42] Speaker 02:
Oh, hold on a sec.

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That's the declaration of the agency, Jill Engels.

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Yes, and her statements are not necessarily dispositive here.

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What did you say, 183?

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Yes, ma'am.

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OK.

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Let me refer the court to the top of the page.

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Right.

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The first full sentence, which is, I think, the fourth line.

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Right.

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It reads as follows.

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The assessment to refer serves as a basis

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for using SCIS's final decision as reflected in the referral notice, which is provided to the applicant.

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The agency's final decision is the referral notice, which is signed by the SAO, the supervisory asylum officer, or the director of the asylum office.

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So the relationship of the two pieces of paper, I think, is pretty clear.

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The assessment to refer.

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which is the subject of this case, is the document that serves as the basis for a second document, the notice of referral, which appears at page 207 of this joint appendix.

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That notice of referral.

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So the second document is just a computer printout.

[00:16:02] Speaker 03:
Well, not necessarily.

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Well, you check boxes.

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Take a look at that if you will, Judge Rogers.

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You'll find that at page 207.

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Yeah, I did.

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OK.

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Now, that document has, at the middle of the page, an explanation for the agency's decision to deny asylum.

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After careful consideration of all available information and explanations at your asylum interview, your claims denied is not credible on the basis of material inconsistencies between your testimony and an application and or other evidence, material inconsistencies within your testimony,

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lack of detail on material points.

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And all that is, what, set out in the assessment?

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It may or may not be set out in the assessment.

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The important thing, Judge Rogers, is the assessment is a recommendatory document.

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I know you say that, but how do we know that?

[00:17:01] Speaker 02:
Well, there are other documents that I think... She doesn't say that, Mrs. Eggleston.

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In other words, our court has said that Exemption 5 is supposed to be very narrowly construed and there are certain things that the agency has to demonstrate and we have several different views in these papers before us as to when the agency has made its final decision.

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For example, if I'm the asylum officer and I say deny the application, you look at it, you check it, it goes on and this referral notice is given.

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If the process shows that yours is just a ministerial checking of the box, checking of the assessment, the decision has been made by the asylum officer that this should be denied.

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On the other hand, maybe the process is that I give you my assessment and you look it over, and while it may be legally sufficient, you disagree with the conclusion.

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in which case there may be some back and forth between us, or if we can't agree, according to the manual, you may refer it up to the director or deputy director.

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He or she in turn may refer it on.

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So is that terribly clear to be where this decision has been made?

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Well, I think it is fairly clear from the application and for the process that it is the supervisory asylum officer who's making the decision.

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And how do we know that?

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Well, it says so in the portion of the declaration that we were discussing.

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Suppose all the supervisory officer does is put it in a manila envelope

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It's still the supervisory official's decision, Judge Rogers.

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Let me call your attention to the sentence that preceded the one we were discussing a moment ago, because I think it also answers the relationship between the assessment to review and the notice of referral.

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That's the first sentence on 23, and it reads as follows.

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And the reason for the decisions to refer, that's what I'm focusing on.

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In this case, the assessment referrer is prepared by the asylum officer in narrative form and explains the officer's concern, discusses possible legal insufficiencies in the application, and the reasons for the decision to refer the case to the immigration court.

[00:19:39] Speaker 02:
So that says to me the asylum officer's report is a decision.

[00:19:43] Speaker 03:
No, he's reporting the record.

[00:19:44] Speaker 02:
And the next sentence says, well, it's the basis for the final decision.

[00:19:50] Speaker 03:
It is, but let me point out one thing that came to mind as you were explaining the options that the supervisory asylum officer has.

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One option you gave was that he can approve, he can check, he can send it on.

[00:20:03] Speaker 03:
Another is that you could disapprove and there are further conversations or it goes up the ladder.

[00:20:08] Speaker 02:
This is according to the agency manual.

[00:20:09] Speaker 03:
Right.

[00:20:10] Speaker 03:
But there's a third.

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And that is that the supervisory asylum officer agrees with the bottom line.

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But he may not agree with everything in the recommendations of the asylum officer.

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And that possibility, it seems to me, illustrates, one, that the assessment to refer cannot be the final decision.

[00:20:33] Speaker 03:
Because the supervisory official may make his decision based on slightly different factors.

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He may agree with the ultimate decision.

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But he may reject some of the things that his subordinate put in that memorandum.

[00:20:47] Speaker 01:
How often is it it just approves?

[00:20:50] Speaker 03:
Do we know?

[00:20:51] Speaker 03:
There's nothing in the record about that, Judge Cavan.

[00:20:53] Speaker 02:
See, and this very statement you and I are looking at in line 151 says the reasons for the decision

[00:21:07] Speaker 03:
But Judge Rogers, that's a reference, it seems to me, to what's going on in the prior line.

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It explains the officer's concerns, the writer of that document.

[00:21:18] Speaker 03:
And the reason I think that's important to what we're discussing, the deliberative process privilege, is because it reflects the fact that the asylum officer

[00:21:29] Speaker 03:
is making his own views known to his superior, which may reflect his own views about the consistency of the testimony, the credibility of the applicant.

[00:21:41] Speaker 03:
Those are all the kind of things that normally you would want to have a free give and take between the subordinate and the higher official.

[00:21:51] Speaker 03:
That's the very kind of dialogue that the deliberative process of privilege is designed to contain.

[00:21:57] Speaker 02:
And what do you do with that last clause?

[00:22:01] Speaker 03:
I'm sorry.

[00:22:02] Speaker 02:
Line 151 and the reasons for the decision to refer.

[00:22:07] Speaker 03:
That's right.

[00:22:07] Speaker 03:
It can be the reasons that the asylum officer believes are the basis for denying asylum.

[00:22:17] Speaker 02:
But it doesn't say can be.

[00:22:19] Speaker 03:
No, it doesn't.

[00:22:21] Speaker 03:
But here, the declarant is describing what these documents are in general.

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And she's doing so in support of the general proposition that these are the kind of documents that affect agency decision making.

[00:22:37] Speaker 03:
And the law and deliberative process, both within FOIA and outside FOIA, is pretty clear that the reason we have this privilege is to make sure

[00:22:48] Speaker 03:
that subordinates and superiors can have a frank discussion about government policy and not all of that discussion will necessarily be made public.

[00:22:59] Speaker 01:
And even if the final decision, I think is your theory, is a rubber stamp, the memo that is essentially rubber stamped is still pre-decisional?

[00:23:13] Speaker 03:
Absolutely.

[00:23:13] Speaker 03:
That's our position, Judge Gavin.

[00:23:16] Speaker 01:
Took my characterization and ran with it.

[00:23:18] Speaker 01:
Okay, good.

[00:23:19] Speaker 03:
Well, I'm not saying that it always is, but even if it were, if the plaintiff were right, there would be no reason to have this second document, the one that 207, the notice of referral.

[00:23:33] Speaker 03:
But the fact that the agency does it this way is because it wants to make sure that there is a process in place

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whereby this candid discussion can occur.

[00:23:46] Speaker 03:
So there are three steps.

[00:23:49] Speaker 02:
There's the asylum officer who talks to the applicant.

[00:23:54] Speaker 02:
There's the supervisor.

[00:23:56] Speaker 02:
And then there's a notice to refer.

[00:23:59] Speaker 03:
Well, as Judge Cavanaugh's remarks pointed out, these are all preliminary steps, too.

[00:24:06] Speaker 03:
This is all reviewed de novo.

[00:24:07] Speaker 02:
What's the final decision?

[00:24:08] Speaker 03:
They're reviewed de novo in the immigration court.

[00:24:11] Speaker 03:
And it's not even a matter of reviewing this decision.

[00:24:14] Speaker 03:
The agency then has to show the basis for denying asylum.

[00:24:20] Speaker 02:
So until it's introduced in this

[00:24:24] Speaker 02:
immigration court proceedings.

[00:24:26] Speaker 02:
There is no final decision by the agency?

[00:24:29] Speaker 03:
No, there's a final decision.

[00:24:30] Speaker 03:
But I'm just saying that the final decision is preliminary.

[00:24:33] Speaker 03:
And it doesn't have legal effect.

[00:24:35] Speaker 03:
It doesn't result in the denial of asylum.

[00:24:39] Speaker 03:
It's really the equivalent of a charging document.

[00:24:42] Speaker 02:
That's right.

[00:24:42] Speaker 02:
I've been indicted by the grand jury.

[00:24:45] Speaker 02:
All right.

[00:24:46] Speaker 03:
Well, for purposes of the discussion here, the final decision for purposes of FOIA is, in fact, the notice of referral, which is a 207.

[00:24:57] Speaker 03:
We can see that.

[00:24:59] Speaker 03:
But I'm talking about the real impact upon the applicant.

[00:25:02] Speaker 02:
Well, that's what he's talking about, too.

[00:25:05] Speaker 02:
I mean, he's saying a lot of these things turn on credibility.

[00:25:09] Speaker 02:
et cetera and you get to court and all of a sudden you see this document that says I referred to something that happened on Monday when in fact it really happened on a Wednesday and so the asylum officer didn't think I was credible.

[00:25:25] Speaker 02:
Or it's a much more complicated problem and all I'm trying to understand is you're saying that the notice to refer or the notice of referral

[00:25:39] Speaker 03:
is the agency's final decision that the matter must go to an immigration court to determine whether asylum will be granted.

[00:25:54] Speaker 03:
For purposes of FOIA law, it's the final decision, and therefore it is not subject to deliberative process privilege.

[00:26:01] Speaker 03:
And how could it be?

[00:26:02] Speaker 03:
It's the document that's sent to the asylum applicant.

[00:26:05] Speaker 03:
Let me turn just briefly.

[00:26:06] Speaker 02:
Can I just ask a quick question?

[00:26:08] Speaker 02:
If the notice, if the assessment is that the application should be granted, what happens?

[00:26:16] Speaker 03:
I believe, I'm not certain of the process, but I believe there is then some notice sent to the asylum applicant in the sense, good news, you're an asylum applicant.

[00:26:26] Speaker 03:
We're not worried.

[00:26:27] Speaker 02:
Based only on the asylum officer's assessment?

[00:26:35] Speaker 03:
No, it's obviously going to be passed on by the supervisory asylum officer.

[00:26:39] Speaker 02:
You say it's obvious.

[00:26:40] Speaker 03:
Well, I don't believe the asylum officer has that authority, Judge Rod.

[00:26:43] Speaker 02:
I understand you don't believe it, and you may well be correct.

[00:26:47] Speaker 02:
But I'm just trying to find out what's in the record here.

[00:26:50] Speaker 02:
If, in fact, the asylum officer's recommendation to grant is what gets the person asylum, then clearly that is a final decision of some type.

[00:27:06] Speaker 02:
If, on the other hand, it has to go to a supervisor, and maybe a supervisor doesn't have authority to grant either, but it has to go to a director or a deputy director.

[00:27:14] Speaker 02:
But this only deals with the denial part.

[00:27:18] Speaker 02:
And I just thought that the granting part might give some insight as to this assessment.

[00:27:27] Speaker 03:
I don't think there's anything in the Eccleston Declaration about that, Judge Rogers.

[00:27:32] Speaker 03:
And that makes perfect sense that this is a denial case.

[00:27:35] Speaker 03:
Let me turn briefly to this.

[00:27:36] Speaker 02:
But she's supposed to be describing the general process.

[00:27:39] Speaker 02:
That's true.

[00:27:40] Speaker 03:
But the general process as it relates to assessments to refer, which are normally a predicate document for a recommendation of denial of asylum.

[00:27:51] Speaker 03:
Let me talk briefly about the statutory argument.

[00:27:54] Speaker 03:
One point is that the plaintiff continually, in his argument, suggests that we know that these documents are valuable and reliable because we want to present them in each case.

[00:28:06] Speaker 03:
But we don't.

[00:28:08] Speaker 03:
It's up to the agency whether it wants to present this as evidence, and it may or may not.

[00:28:13] Speaker 03:
When it does so, obviously, it's a document that has to be presented to the applicant

[00:28:20] Speaker 03:
connection with the hearing.

[00:28:21] Speaker 01:
Why would it not be used in the proceeding?

[00:28:24] Speaker 03:
Because the agency may rely on other evidence

[00:28:28] Speaker 03:
other than the assessment to refer as the basis.

[00:28:31] Speaker 01:
And there's something problematic in the assessment to refer from the agency's perspective of denying asylum.

[00:28:36] Speaker 03:
Could be.

[00:28:37] Speaker 01:
I mean, that's not a great answer, but that's probably the correct answer.

[00:28:43] Speaker 03:
If there weren't the possibility of give and take that might reveal something that's sensitive to the agency, it wouldn't be appointed to deliberative process privilege, and the agency wouldn't assert it.

[00:28:55] Speaker 03:
So let me just say,

[00:28:57] Speaker 03:
to confirm the point, we don't.

[00:29:01] Speaker 03:
We don't introduce them in every case.

[00:29:04] Speaker 03:
And the fact that we do in some and don't in others in no way suggests that they're reliable or unreliable.

[00:29:10] Speaker 03:
It shows that when we weigh the balance in a particular case, the assessment may be valuable enough for the proceeding that we want to introduce it and are willing to waive the deliberative process privilege that would otherwise apply.

[00:29:25] Speaker 03:
The only other point that I want to make relates to the nature of the production that the statute contemplates.

[00:29:32] Speaker 03:
And here it's worth pointing out, this is a statutory provision that Congress has written.

[00:29:37] Speaker 03:
Congress has decided what the asylum applicant is going to get and when he's going to get it.

[00:29:44] Speaker 03:
And the provision at issue 1229A or B reads as follows.

[00:29:50] Speaker 03:
The alien shall have a reasonable opportunity

[00:29:53] Speaker 03:
to examine the evidence against the alien, to present evidence on the alien's omicat, and to cross-examine witnesses presented by the government.

[00:30:03] Speaker 03:
That sounds like a trial type right.

[00:30:07] Speaker 03:
It doesn't sound like pretrial discovery.

[00:30:09] Speaker 03:
And I think it has been written that way because it is drafted so as to ensure the rights of the asylum applicant at trial to examine this evidence or any other evidence that can be used against it.

[00:30:23] Speaker 03:
But it's not designed as pretrial discovery that would be available whether or not even the case goes forward.

[00:30:30] Speaker 03:
Here, this is producible if and only if the case actually goes forward and the government decides to introduce it as evidence.

[00:30:40] Speaker 03:
Otherwise, it would remain subject to deliberative process privilege.

[00:30:45] Speaker 03:
If there are no further questions, we're prepared to submit the case for the court's disposition.

[00:30:50] Speaker 02:
Thank you.

[00:30:52] Speaker 02:
All right.

[00:31:00] Speaker 04:
Counsel for the time.

[00:31:00] Speaker 04:
Counsel is suggesting that if the hearing starts at 9 o'clock in immigration court at 1035, they can put the assessment into evidence.

[00:31:07] Speaker 04:
That's what he's suggesting.

[00:31:08] Speaker 04:
That's very unfair.

[00:31:11] Speaker 04:
If any privilege the government says that it has must be used only in their way.

[00:31:15] Speaker 01:
Isn't the solution to that for the immigration court to require earlier disclosure?

[00:31:21] Speaker 04:
That would be great.

[00:31:22] Speaker 04:
The immigration courts don't do it.

[00:31:24] Speaker 04:
They say there's no discovery.

[00:31:25] Speaker 01:
And I understand.

[00:31:26] Speaker 01:
I'm just saying the remedy you're seeking here, and I understand your concern and sympathize with it, but seems a mismatch for the issue that you're most concerned about.

[00:31:39] Speaker 04:
Well, we would hope there would be more remedies at the immigration court, but they say do it for you.

[00:31:44] Speaker 01:
I understand.

[00:31:45] Speaker 01:
I understand.

[00:31:46] Speaker 04:
I would suggest that the United States versus Julian is a case to be considered, 1988.

[00:31:54] Speaker 04:
Mr. Julian was a convicted criminal.

[00:31:57] Speaker 04:
The probation officer has a pre-sentence report, and it's going to the judge.

[00:32:00] Speaker 04:
And he says, Mr. Julian says, maybe there's mistakes in it.

[00:32:03] Speaker 04:
I want to read it beforehand.

[00:32:04] Speaker 04:
The government said, you can't have it.

[00:32:06] Speaker 04:
It's privileged.

[00:32:07] Speaker 04:
Supreme Court said, another statute says you get it.

[00:32:10] Speaker 04:
18 United States Code 4208 says you can read these pre-sentences reports.

[00:32:14] Speaker 04:
So they gave it to him.

[00:32:15] Speaker 04:
Chief Justice Rehnquist said, Congress did not intend a privilege in this case.

[00:32:20] Speaker 04:
Well, isn't that case perfect, right, for us?

[00:32:23] Speaker 04:
OK, there's a privilege, except 1229A says you get this kind of evidence.

[00:32:30] Speaker 04:
So therefore, Congress did not intend.

[00:32:31] Speaker 02:
When you're in court.

[00:32:33] Speaker 02:
In Julian, he was in court about to be sentenced.

[00:32:39] Speaker 04:
Mr. Aptu is in court.

[00:32:40] Speaker 04:
His hearing is scheduled next year.

[00:32:42] Speaker 04:
He's in court.

[00:32:46] Speaker 04:
But there should be... Ah, so let me just be clear.

[00:32:52] Speaker 02:
It's scheduled for the hearing, the trial you're telling us is scheduled for 2016.

[00:33:02] Speaker 04:
Actually, a master hearing is scheduled for June 2016.

[00:33:04] Speaker 04:
A master hearing is a one-minute adventure where the court says, what do you want?

[00:33:08] Speaker 04:
And we say we want an individual hearing of three hours, and that'll probably give us 2017, 2018, for a two-hour evidentiary hearing.

[00:33:17] Speaker 04:
That's the future, Mr. Epstein.

[00:33:19] Speaker 02:
And your client remains in the country at large, right?

[00:33:23] Speaker 04:
Indeed.

[00:33:24] Speaker 02:
Yes.

[00:33:24] Speaker 04:
Indeed.

[00:33:25] Speaker 04:
He wants to win asylum, and so he can petition for his wife to come over.

[00:33:30] Speaker 04:
And I suggest something else about 1229A.

[00:33:33] Speaker 04:
It has three parts to it.

[00:33:37] Speaker 04:
You have the right to examine evidence against him.

[00:33:39] Speaker 04:
That would be the assessment.

[00:33:40] Speaker 04:
He has the right to present evidence on his own behalf.

[00:33:44] Speaker 04:
Maybe there's something in the assessment that's useful to the applicant, because asylum officers do research that helps applicants at times.

[00:33:51] Speaker 04:
We'd like to see what's in there.

[00:33:52] Speaker 04:
Maybe there's something in there that helps the applicant, so we want to get it.

[00:33:57] Speaker 04:
1229A, he has the right to cross-examine witnesses presented by the government.

[00:34:01] Speaker 04:
OK, what if the asylum officer is a witness?

[00:34:03] Speaker 04:
Then what do we do?

[00:34:05] Speaker 04:
Wow, how do I cross-examine the asylum officer without the assessment?

[00:34:08] Speaker 04:
So 1229A should be construed broadly in consideration of all the facts.

[00:34:13] Speaker 04:
We want fairness to the applicants.

[00:34:15] Speaker 04:
The privilege should be construed narrowly.

[00:34:18] Speaker 04:
The trial should be a search for the truth.

[00:34:20] Speaker 04:
This privilege is interfering with the truth, and it's very unfair to the asylum applicant.

[00:34:26] Speaker 02:
Thank you.

[00:34:27] Speaker 02:
We will take your case under advisory.