Claudia Slovinsky, Esq.

233 Broadway, Suite 2005

New York, NY 10279
U.S. Department of Justice
Executive Ofce fr Iigation Review
Board of Immigation Appeals
Ofce of the Chief Clerk
5107 Leesburg Pike, S11ite 2000
Falls Church, Vrinia 20530
OHS/ICE Ofice 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For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Mohammad M. Qatanani, A076 133 969 (BIA May 13, 2014)
! '
U.S. Deparment of Justce
Executive Ofce fr Immigration Review
Decision of the Board of Immigation Appeals
Falls Chuch, Virginia 20530
Files: A076 133 969 - Newark, NJ
A076 123 694
A076 123 695
A076 123 696
A076 123 697
In re: MOHAMD M. OATANANI
SUMAIA M. ABUHOUD
OMAR M. OATAANI
AHMAD M. OATAANI
ISRA M. OAT AAI
IN REMOVAL PROCEEDINGS
INTERLOCUTORY APPEAL
Date:
ON BEHALF OF RESPONDENTS: Claudia Slovinsky, Esquire
ON BEHALF OF DHS: Jaes T. Dehn
Associate Lega Advisor
MAY
l 3 2014
The Depament of Homeland Secuty ("DRS") fled a interlocutory appeal fom the
Immigation Judge's decision dated Januay 22, 2013, which granted the respondents'
1
motion
fr subpoenas to the Newark, New Jersey Custodian of Records fr both the Federal Bureau of
Investigation ("FBI") and the United States Customs and Immigration Enfrcement ("ICE"), fr
the production of cerain documents. The respondents oppose the appeal. On March 3, 2014,
a three-member panel of the Boad heard oral argument fom the paies. The DHS's
interlocutory appeal will be sustained and the Immigration Judge's decision will be vacated.
Although this Boad does not ordinaily entertain interocutory appeals, we have rled on the
merts of interlocutory appeals where we deemed it necessay to address import jwisdictional
questions regading the administation of the immigration laws, or to corect recur ing problems
in the handling of caes by Immigation 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 mater
involves a imporat jwsdictional question regading the administation of the imigation
laws, we will accept ths case by cerifcation and addess the merits of this interlocutory appeal.
Mater 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); Mater of Dobere,
20 l&N Dec. 188 (BIA 1990).
Tis matter was last befre the Board on October 28, 2009, when we sutaned the DHS's
appeal of te Immigration Judge's decision dated September 4, 2008, which granted the
1 Te respondents in this case are a husband, wif, and thee children. The husband
(A076 133 969) is the lead respondent and will be refrred to as the "lead respondent" or
"M. Qatanani."
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Cite as: Mohammad M. Qatanani, A076 133 969 (BIA May 13, 2014)
A076 133 969 et al.
respondents' application fr 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 frther evaluate certain specifc evidentiary issues and to assess whether the lead
respondent carried his burden of establishing eligibility fr adjustent of status; in particular,
whether the lead respondent established that he is not inadmissible under section 212(a)(3)(B)(i)
of the Act fr engaging in terorist 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 fr maing material faudulent
misrepresentations on his application fr adjustent of stats (BIA Dec. at 4-5).
On Jauary 10, 2012, the respondents made Freedom of Information Act ("FOIA") requests
to the FBI and various DHS components (collectively referred to herein as "the goverent") fr
documents relating to the lead respondent. The D HS assers that in response to those requests
the goverent conducted a seach, deterined that certain infration is protected fom
disclosure under FOIA's statutory exemptions, and released the non-exempt, segregable portions
of responsive docuents (DHS Brief in Support of Interlocutory Appeal at 6-7; I.J. at 5). On
June 29, 2012, and August 24, 2012, the respondents fled complaints against the Depament of
Justice and the DHS in te United States District Court fr the District of New Jersey, seeking to
compel the disclosure of records withheld in fll or in part and, if necessay, to compel fther
searches fr responsive documents ("the FOIA litigation"). See Qatanani v. Dep 't of Justice,
2: 12-cv-04042-KSH-PS (D.N.J.) (fled June 29, 2012); Qatanani v. Dep't of Homeland Securit,
2:12-cv-05379-KSH-PS (D.N.J.) (fled August 24, 2012). Notwithstding the FOIA litigation,
the respondents fled their motion fr subpoenas with the Imigration Judge.
The Immigration Judge apparently without conducting a hearing, fud that the respondents
satisfed the regulatory requirements fr the issuance of the subpoenas, and tat despite
the respondents' eforts trough FO IA and the FO IA litigation, they have been unsuccessfl
in obtaining the requested documents or have obtained documents that were heavily redacted
pursuant to vaious FOIA exemptions (I.J. at 3-5). Relying on Oliva-Ramos v. Att ' Gen.,
694 F.3d 259 (3d Cir. 2012), 2 the Immigration Judge concluded that the respondents
demonstated that the documents they seek are essential to the issues to be resolved in this case,
and he issued subpoenas which commad the FBI and ICE to produce certain documents.
3
2 In Oliva-Ramos, the Tird Circuit concluded that the alien's subpoena request was essential to
his claim that ICE engaged in "egegious or widespread violations ad alleged constitutional
violations" because the subpoenaed materials could have shed light on the contested natue of the
alien's alleged consent fr the ICE enter the premises, and the testimony of ofcers could have
been used to adduce additional fcts that may have altered the analysis of the constitutional
claims. Oliva-Ramos v. Att' 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 coverng 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 ad Immigration Service stating that the lead respondent's adjustment
application should not be suspended on te ground that the FBI has interposed an objection;
(2) FBI and ICE agents' notes and repors of te February 2005 meeting; and (3) unedacted
copies of documents released by ICE on July 15, 2012, pursuant to the respondents' FOIA
request. See Appendix B attached to subpoena fr documents issued to ICE, Janua 18, 2013.
2
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Cite as: Mohammad M. Qatanani, A076 133 969 (BIA May 13, 2014)
A076 133 969 et al.
We will vacate the Immigation Judge's decision and quash the subpoenas because they
are premature and overbroad, the Immigration Judge did not identif or establish a procedure
fr addressing any privilege issues, and the Immigation Judge has not sufciently explained
how the documents te 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 impenissibly overbroad. For example, the subpoena issued to the ICE orders
that, in addition to te production of "FBI Agent Angel L. Alicea's notes fom the February 7,
2005 meeting between Dr. Qatanani and the FBI and ICE," the ICE must produce "notes taken
by any other federal goverent agent present at the meeting" (I.J. Subpoena to ICE, 2). FBI
Special Agent Alicea is not employed by the ICE, and the commad fr the ICE to produce notes
fom a individual not under its control, or notes taken by oter fderal agents, is overbroad.
Similaly, the subpoena to the FBI is overbroad as it commands te agency to produce "notes
taken by any other fderal goverent agent present at [the Febrary 7, 2005] meeting"
(I.J. Subpoena to FBI, 1 3).
Te subpoena power bestowed upon Immigation 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 deterination that the OHS is required to
provide the Immigration Court with an applicant's complete administrative record fom
the USCIS); Matter of Benitez, 19 l&N Dec. 173 (BIA 1984) (noting that the Federal Rules of
Civil Procedure ae not applicable in deportation proceedings, and there is no requirement that a
request fr discovery be honored). The Immigration Judge acknowledged that general discovery
is prohibited in these proceedings, and expressed concers about a "fshing 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" fom 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; Mater of
Gonzalez, 16 I&N Dec. 44, 46 (BIA 1976). Oliva-Ramos may not be interreted as a basis
fr authorizing Imigration Judges to order discovery; generalized discovery requests, fom
either party, are inappropriate in removal proceedings. Matter of Khaliah, 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
infration 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 fund that "although
Respondent has the burden of proving his eligibility fr 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 suffciently explan how records in the goverent fles fom
2005 are "necessay" fr the respondent to meet his burden.
3
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Cite as: Mohammad M. Qatanani, A076 133 969 (BIA May 13, 2014)
A076 133 969 et al.
This situation is distinguishable fom Oliva-Ramos, where the alien did not receive FOIA
documents in time to present befre the Immigration Cour, 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 enty of dwellings - was directly tied to the relevant issue in dispute
(i.e., wheter the goverent acted in an egregious maner or engaged in widespread
constittional violations i a seach and seize). Oliva-Ramos v. Atty Gen., supra, at 273.
I this case, the respondents have already received docuents fom their FOIA efors to
present in Immigation Court,
4
and the link between the evidence sought and te relevant issues
remans questionable. The lea respondent' s encounter with the Israeli military occured in 1993,
and his responses on the adjustment application were made in 1999. Unlike Oliva-Ramos, each
of these events predates the evidence te respondents seek fom the goverent. While the
respondents may be dissatisfed with the extent of the goverent' s FOIA production, the fct
remains tat 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 yeas later by third parties.
Wle the lead respondent hopes they will bea on the issue of his potential inadmissibility, it is
not clear fom the record tat it would. In shor, based on te record currently befre u, both the
applicability of Oliva-Ramos and the "essentiality" of such evidence appea tenuous, ad have
not been adequately tied to the issues that were remanded. Thus, the "essentiality" requirement
has not been met based on te cuent record.
Further, the nature of the evidence sought may implicate privilege and confdentiality
concers, 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 identif a procedure
fr addressing issues of privilege or confdentiality. In the event tat fture subpoenas ae
4 We take administative notice of documents fled in the FOIA litigation, including the
Defndants' Notice of Motion fr Su ary Judgment, which reveal that in response to the
respondents' FOIA requests, the goverent 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 fcts, such as curent events and the contents of
ofcial records). Specifcally, the goverent has produced the non-exempt, portions of a
contemporaneous tanscript of the February 7, 2005, meeting, ad documents relating to the lead
respondent' s encounter with the Israeli military. See Qatanani v. Dep 't of Homeland Securit,
2: 12-cv-05379-KSH-PS (D.N.J.), Document 26 (fled Mach 22, 2013); Appendix B attached to
subpoena fr documents issued to ICE, Januay 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
infration as the Goverent may profer in opposition to the alien's admission to the
United States or to an application by the alien fr discretionary relief under this chapter." To the
extent that classifed inforation is presented in immigration cour, proper procedures must be
fllowed. See Operating Policies and Procedures Memorandum 09-01: Classied Inormation
in Immigration Court Proceedings (2009).
4
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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 procedue fr handling such issues;
tis would include fr exaple requirng in camera inspection of ay documents to which a
claim of privilege is assered.
Finally, we note that during oral agument befre the Boad both paies indicated a
willingness to continue proceedings until a resolution is reached in the pending FOIA litigation.
Given te potential fr complete resolution or at least a narrowing of te relevant issues in tat
venue, it may be premature to conclude that the respondents have made "diligent eforts 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 paties may wish to frther explore the
option of a continuance fr 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 fllowing orders will be entered.
ORDER: The DHS's appeal is sustained.
FURTHER ORER: 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 fher
action.
6
Nothing in this decision should be interreted as precluding the Immigration Judge fom
issuing subpoenas in the fte. However, if such subpoenas are issued, a hearing should be
conducted and fndings of fct rendered to establish that the regulatory stdads ae met, the
subpoenas are narrowly tailored ad not tantamount to genera discovery, and proper procedures
are established fr the production of ay documents.
5
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Cite as: Mohammad M. Qatanani, A076 133 969 (BIA May 13, 2014)