United States District Court, D. Nevada
ORDER MOTION FOR PROTECTIVE ORDER (ECF NO.
FERENBACH, UNITED STATES MAGISTRATE JUDGE.
the Court is Respondent United States Citizenship and
Immigration Services's ("USCIS") Motion for
Protective Order. (ECF No. 13). For the reasons discussed
below, USCIS's motion is granted.
January 19, 2016, USCIS denied Al Falahi's application
for naturalization. (ECF No. 1 at 2). USCIS denied Al
Falahi's administrative appeal on August 22, 2016.
(Id. at 3). On December 16, 2016, Al Falahi filed a
Petition for De Novo Review of Denial of Application for
Naturalization and Request for Hearing Pursuant to 8 U.S.C.
§ 1421(c). (Id. at 1).
of this case, Al Falahi served on USCIS a Rule 30(b)(6)
notice of deposition and Rule 45 subpoena related to the
Controlled Application Review and Resolution Program
("CARRP"). (ECF No. 13 at 4). Al Falahi believes
that his naturalization application was subjected to CARRP,
which he asserts "unjustifiably labels law abiding
citizenship applicants as 'national security
concerns' based on lawful religious activity, national
origin, and innocuous associations" and leads to
applications being denied for pretextual reasons. (ECF No. 1
at 3). Specifically, Al Falahi believes his application was
"denied because he was unconstitutionally subject to
CARRP" rather than the reason USCIS gave: "that
false testimony was given during the statutory period for the
purpose of obtaining an immigration benefit."
(Id. at 10).
October 11, 2017, USCIS filed a motion for protective order.
(ECF No. 13). USCIS asserts that the Court should prevent
discovery into matter relating to CARRP and quash Al
Falahi's notice of deposition and subpoena because the
information is irrelevant and privileged. (Id. at
1-2). USCIS argues the information is irrelevant because
"[t]he one and only question before this Court remains
whether Petitioner is qualified for naturalization, not
whether the agency made the right decision or the process it
used." (Id. at 7). USCIS also argues that
"[acknowledging that a particular individual has an
articulable link to national-security related grounds of
inadmissibility or removability...could understandably cause
the individual, or his associates, to seek out means to avoid
detection, or frustrate an on-going investigation by
revealing to the individual that the government has
information." (Id. at 8).
opposition, Al Falahi argues the information is relevant to
this case because "a de novo review does not require the
court to turn a blind eye to any previous errors by
USCIS." (ECF No. 16 at 5). Al Falahi also argues the law
enforcement privilege does not apply because "vague
generalities about possible implications to unnamed
investigations" does not demonstrate a need to protect
information regarding CARRP. (Id. at 6-7). In
addition, the USCIS may have used CARRP to find
"evidence that it plans to use to rebut Mr. Al
Falahi's eligibility for citizenship" (Id.
at 4). In its reply, USCIS asserts that it has provided Al
Falahi "with all the evidence upon which it currently
intends to rely in defense of this case" and CARRP plays
no role in USCIS's case. (ECF No. 17 at 2). The Court
held a hearing on November 27, 2017 to allow oral arguments
on this matter. (ECF No. 19).
may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense."
Fed.R.Civ.P. 26(b)(1). "A party or any person from whom
discovery is sought may move for a protective order in the
court" on the grounds of "annoyance, embarrassment,
oppression, or undue burden or expense." Fed.R.Civ.P.
asserts that whether it applied CARRP to Al Falahi's
application and how the program operates are irrelevant to
the Court's de novo review of Al Falahi's denial of
application for naturalization. (ECF No. 13 at 7). Pursuant
to 8 U.S.C. § 1421 (c):
A person whose application for naturalization under this
subchapter is denied... may seek review of such denial before
the United States district court for the district in which
such person resides in accordance with chapter 7 of title 5.
Such review shall be de novo, and the court shall make its
own findings of fact and conclusions of law and shall, at the
request of the petitioner, conduct a hearing de novo on the
applicant bears the burden to show his or her eligibility for
citizenship in every respect." Hussein v.
Barrett, 820 F.3d 1083, 1088 (9th Cir. 2016).
Court finds that details of CARRP are irrelevant to the
Court's de novo review of Al Falahi's application for
naturalization. The only issue before the Court is whether Al
Falahi is qualified for citizenship. The case is about Al
Falahi's qualifications at the time of the Court's
final hearing, not about the past processes of USCIS.
"[T]he district court has the final word and does not
defer to any of the INS's findings or conclusions."
United States v. Hovsepian, 359 F.3d 1144, 1162 (9th
Cir. 2004); see also Khan v. United States Citizenship
& Immigration Servs., No. 15-CV-23406, 2017 WL
698512, at *5 (S.D. Fla. Feb. 22, 2017) ("this Court
also does not defer to any of the agency's procedures in
making that de novo determination-including the alleged
application of CARRP"). In addition, USCIS has stated
that it has already provided Al Falahi "with all the
evidence upon which it currently intends to rely in defense
of this case, " (ECF No. 17 at 2), so there is no need
to inquire as to whether USCIS discovered any additional
information through CARRP.
November 30, 2017 hearing, Al Falahi brought up the
possibility of challenging USCIS witnesses' credibility
by asking whether CARRP impacted their finding that Al Falahi
gave false testimony. Assuming arguendo that this
question would be relevant to credibility,  USCIS stated that
it would object to this question on the grounds of privilege.
Without attempting to predict how the District Court judge
would handle this issue at the final review hearing, this
Court is persuaded that the law enforcement privilege
prevents USCIS's witnesses from discussing details about
the CARRP program. "[I]t is well established that the
law enforcement privilege may be asserted to preserve the
future effectiveness of an investigative technique."
Shah v. Dep't of Justice,89 F.Supp.3d 1074,
1081 (D. Nev. 2015). As USCIS argues, revealing ...