19-1157 Spadaro v. United States Customs and Border Protection, et al.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________
August Term, 2019
(Argued: May 4, 2020 Decided: October 20, 2020)
No. 19-1157 _______________
SARO SPADARO,
Plaintiff-Appellant,
— v. —
UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF STATE, FEDERAL BUREAU OF INVESTIGATION, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF JUSTICE,
Defendants-Appellees. _______________
Before: LOHIER, BIANCO, and PARK, Circuit Judges. _______________ Plaintiff-appellant Saro Spadaro appeals from a judgment of the United States District Court for the Southern District of New York (Sullivan, J.) entered in favor of defendants-appellees United States Customs and Border Protection, the United States Department of State, the Federal Bureau of Investigation, United States Citizenship and Immigration Services, and the United States Department of Justice. Spadaro filed his complaint under the Freedom of Information Act, 5 U.S.C. § 552, seeking documents related to the revocation of his visa. The district court granted defendants-appellees’ motion for summary judgment, upholding their claims of statutory exemptions, and entered judgment on March 27, 2019. Because we conclude that the contested documents pertain to the issuance and refusal of a visa, we hold that they were properly withheld under FOIA Exemption 3, and specifically INA § 222(f). We also find Spadaro’s other arguments as to why Exemption 3 does not protect the withheld documents from disclosure to be unpersuasive. Accordingly, and for the reasons set forth in a separate summary order addressing FOIA Exemption 5 filed simultaneously with this Opinion, we AFFIRM the judgment of the district court.
_______________
ROBERT S. GROBAN, JR., Berry Appleman & Leiden LLP, New York, NY (David J. Clark, Matthew S. Aibel, Epstein Becker & Green, P.C., New York, NY, on the brief), for Plaintiff- Appellant.
STEPHEN CHA-KIM, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Audrey Strauss, Acting United States Attorney for the Southern District of New York, New York, NY, for Defendants-Appellees.
JOSEPH F. BIANCO, Circuit Judge:
Plaintiff-appellant Saro Spadaro brought this action under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, against defendants-appellees United
2 States Customs and Border Protection (“CBP”), the United States Department of
State (“DOS”), the Federal Bureau of Investigation (“FBI”), United States
Citizenship and Immigration Services (“USCIS”), and the United States
Department of Justice (“DOJ” and, collectively, “the government”), in the United
States District Court for the Southern District of New York (Sullivan, J.). Spadaro
sought complete and unredacted records relating to himself generally and relating
to the government’s decision to prudentially revoke his visa in 2008. In response,
the government invoked certain statutory exemptions, including FOIA Exemption
3, which protects from disclosure records that are specifically exempted by statute,
and FOIA Exemption 5, which protects from disclosure attorney-client and
deliberative communications. The district court granted summary judgment in
the government’s favor, holding that it properly withheld the documents
under the exemptions. On appeal, Spadaro principally argues that Exemption 3
does not apply to the material at issue because the governing statute, § 222(f) of
the Immigration and Nationality Act of 1952 (“INA”), codified at 8 U.S.C. § 1202(f),
only protects material that relates to the issuance or refusal of visas, while these
documents relate to the revocation of his visa. He further contends that Exemption
5 does not apply because of, inter alia, waiver and misconduct by the government.
3 In a separate summary order filed simultaneously with this Opinion, we affirm
the district court’s ruling as to Exemption 5. We conclude here that under
Exemption 3 – and specifically pursuant to INA § 222(f) – documents that pertain
to a visa revocation fall within the statute’s coverage and are thus protected from
disclosure. We also find Spadaro’s other arguments as to why Exemption 3 does
not protect the withheld documents from disclosure to be unpersuasive.
Accordingly, we AFFIRM the judgment of the district court.
BACKGROUND
I. Facts
Spadaro, a citizen of Italy who resides on the Dutch Caribbean island of St.
Maarten, seeks information regarding the DOS’s decision to revoke his B-1/B-2
visa, which has prevented him from traveling to the United States. Prior to the
revocation, Spadaro frequently traveled to the United States for business and
leisure. From about 2000 to March 2006, he entered the country using the Visa
Waiver Program, until he was informed that he would need to secure a visa for
further visits. Spadaro applied for a visa, and on March 30, 2006, after clearing the
required security checks, he was issued a combination B-1/B-2 visitor’s visa from
the DOS through the United States Embassy in Bridgetown, Barbados. Following
4 issuance, Spadaro used the five-year B-1/B-2 visa to travel to the United States on
multiple occasions.
On October 22, 2008, Spadaro received notice from the DOS that his visa had
been “prudentially revoked.” Joint App’x at 617, 668. A “prudential revocation”
is a mechanism by which the DOS can revoke visas “if an ineligibility or lack of
entitlement is suspected, when [a noncitizen] would not meet requirements for
admission, or in other situations where warranted.” Foreign Affairs Manual
§ 403.11. The DOS based its decision on INA § 212(a)(3)(A)(ii), 8 U.S.C.
§ 1182(a)(3)(A)(ii), which permits the DOS to bar the admission of a foreign
national who the DOS “knows[] or has reasonable ground to believe” will engage
in unlawful activity in the United States. Appellant Br. at 2 (quoting 8 U.S.C.
§ 1182(a)(3)(A)(ii)). Spadaro appealed this decision with the DOS, contending that
the revocation was improper because he had no criminal record. On January 26,
2010, the DOS affirmed its decision to revoke the visa under INA § 212(a)(3)(A)(ii).
In February 2014, October 2014, and February 2017, Spadaro re-submitted visa
applications, which the DOS subsequently denied.
Spadaro alleges that at a meeting on or around January 29, 2013, two FBI
agents admitted to him that there was no evidence to support the revocation.
5 According to Spadaro, the FBI agents revealed that, in the early 2000s, the
government had investigated whether Spadaro’s father, Rosario Spadaro, had
committed insurance fraud or money laundering in connection with a damages
claim he made after Hurricane Lenny in 1999. Despite the investigation, labeled
“Operation Blackbeard, Sicilian Mafia,” Joint App’x at 679, 690, no charges were
filed in the United States against Spadaro or his father, and the case was closed.
Spadaro asserts that, during the meeting, the FBI agents informed him that
due to confusion distinguishing him from his father, he was placed on a “watch
list” as a result of the FBI investigation. Joint App’x at 621. The FBI neither
confirms nor denies that Spadaro’s name appears on any watch list. The FBI
agents purportedly stated that the problem with his visa could be resolved, and
he could get his visa back if he either gave them information on criminal activities
or paid a $3 million “civil forfeiture” payment for crimes allegedly committed by
his father. Joint App’x at 622. He claims that, because he rejected these offers, the
government has spread false information to foreign authorities, which has hurt his
business endeavors.
In February 2014, Spadaro met with two Drug Enforcement Administration
(“DEA”) agents. According to Spadaro, they similarly told him that they could
6 assist with his visa if he gave them information on criminal activity. Spadaro
asserted that he had no information to give, and the DEA subsequently informed
him that it could not assist with his visa.
Since his meetings with the FBI and DEA, Spadaro has experienced
application and travel delays in foreign countries. Spadaro believes that these
disruptions have been caused by the spread of incorrect information about him by
U.S. officials and represent an attempt to force him to cooperate with their
investigations. For example, on March 18 and 20, 2014, while traveling to and from
Panama, Spadaro was stopped and questioned by Panamanian immigration
officials before being allowed to enter and exit the country.
Spadaro later encountered issues in Anguilla when trying to obtain a
landholding license. Spadaro claims that the only reason that the Anguillan
authorities have not approved the license is a letter dated October 21, 2014, in
which Jeffrey Stanley, Legal Attaché to the U.S. Embassy in the Bahamas, repeated
several of the allegations that the FBI and DEA made against Spadaro to an
Inspector in the Royal Anguilla Police Force. In addition, in 2016, while traveling
to Montreal, Spadaro was stopped and questioned about his business dealings
before being told that he was on a “no go list.” Joint App’x at 604. He contends
7 that these instances demonstrate that the government is trying to spread
misinformation about him in order to “extort his cooperation.” Appellant Br. at
12.
Seeking information that the government had about himself generally and
the revocation of his visa specifically, Spadaro submitted FOIA requests to the
DOS, USCIS, CBP, the DOJ, and the FBI. In response, Spadaro explains that the
government agencies identified 3,200 pages of documents responsive to Spadaro’s
requests, withheld 2,229 pages, and produced 971 of those pages, 774 of which
Spadaro describes as “heavily redacted.” Appellant Br. at 12. Specifically, the CBP
identified 436 pages of responsive documents, all of which were released with
redactions under FOIA Exemptions 6, 7(C), and 7(E). Of the 107 responsive
documents identified by the DOS, 39 were released in full, five were withheld in
part, and 63 were withheld in full under FOIA Exemptions 3, 5, and 7(E). USCIS
identified 34 pages responsive to Spadaro’s request, of which 26 pages were
released in full, six were withheld in part, and two were withheld in full under
FOIA Exemptions 7(C) and 7(E). Of the 2,798 pages reviewed by the FBI, 462 were
released in full or in part after withholdings were made under FOIA Exemptions
1, 3, 5, 6, 7(C), 7(D), and 7(E).
8 II. Procedural History
Spadaro filed this lawsuit on January 4, 2016, and the parties each moved
for summary judgment in 2017. At oral argument on March 12, 2018, the district
court ruled from the bench, partially granting the government’s motion for
summary judgment, and fully denying Spadaro’s cross-motion, as to Exemptions
1, 3, 5, 6, 7(C), and 7(D). The court also determined that the government had not
met its burden in claiming FOIA Exemption 7(E). The next day, March 13, the
district court issued an order setting forth its rulings from the oral argument and
directing further briefing on the remaining issues.
On March 26, 2018, the parties submitted a joint letter in which Spadaro
requested that the district court reconsider its rulings on Exemptions 3 and 5. In
the letter, the government also agreed to submit revised affidavits and a revised
Vaughn index 1 as to Exemption 7(E). On May 17, 2018, the district court issued an
order rejecting Spadaro’s request that it reconsider its decision as to FOIA
Exemption 3, ordering the parties to file renewed cross-motions for summary
1A Vaughn index, derived from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), “number[s] and identif[ies] by title and description documents that are being withheld and specif[ies] the FOIA exemptions asserted.” N.Y. Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 105 (2d Cir.), opinion amended on denial of reh’g, 758 F.3d 436 (2d Cir.), supplemented, 762 F.3d 233 (2d Cir. 2014).
9 judgment on Exemption 5, and directing the parties to address the issue of
segregability. 2
The parties renewed their cross-motions for summary judgment on
Exemptions 5 and 7(E), and on March 25, 2019, the district court granted the
government’s motion and denied Spadaro’s motion. The district court entered
judgment on March 27, 2019.
Spadaro timely filed a notice of appeal on April 25, 2019. Spadaro seeks
review of multiple decisions by the district court: (1) the March 12, 2018 rulings
from the oral argument on the motions for summary judgment; (2) the March 13,
2018 order memorializing the rulings from oral argument; (3) the May 17, 2018
order; (4) the March 25, 2019 order; and (5) the March 27, 2019 entry of judgment.
Spadaro first argues that the district court erred by permitting the DOS to withhold
and redact documents under FOIA Exemption 3, which he claims relates only to
the disclosure of documents pertaining to the issuance of a visa or refusal of a visa
2FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). “Before approving the application of a FOIA exemption, the district court must make specific findings of segregability regarding the documents to be withheld.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007). Spadaro does not challenge the district court’s segregability finding.
10 – not the revocation of a visa. Second, he asserts that the government improperly
withheld those documents under FOIA Exemption 7(E), which protects law
enforcement techniques or procedures. Finally, he claims that the district court
erred by granting summary judgment in the government’s favor after finding that
the government properly relied on FOIA Exemption 5 to withhold and redact
documents, asserting that the government waived any privilege to matters
discussed in a public letter. Spadaro does not appeal the district court’s decision
denying his claims under FOIA Exemptions 1, 6, 7(C), and 7(D).
DISCUSSION
Spadaro appeals the district court’s order granting summary judgment to
the government, which allowed the DOS to withhold and redact certain
documents based upon enumerated exemptions to FOIA. We focus here on
Spadaro’s arguments regarding Exemption 3 and address in a separate summary
order his arguments regarding Exemption 5. At issue are documents withheld in
full or in part by the DOS, as set forth in its Vaughn indices. 3 According to the
Vaughn indices, the material withheld pursuant to Exemption 3, and specifically
INA § 222(f), “pertains directly to the issuance or refusal of a visa to enter the
3We use the term “withheld documents” in this Opinion to refer to documents that the government withheld in full or in part because of redactions. 11 United States.” Joint App’x at 283; see also Joint App’x at 284–94, 593–94.
Spadaro claims that the district court erred by permitting the DOS to rely on
Exemption 3 because “(a) documents concerning [his] visa revocation do not relate
to the issuance or refusal of visas, and therefore are not protected from disclosure
by INA § 222(f) (8 U.S.C. § 1202(f)),” and (b) even if the confidentiality requirement
of INA § 222(f) applies to the withheld documents, the documents should be
released in the interest of the ends of justice under that provision. Appellant Br.
at 14, 30–31.
I. Standard of Review
This Court reviews a district court’s grant of summary judgment in FOIA
litigation de novo. Wilner v. NSA, 592 F.3d 60, 69 (2d Cir. 2009). “The agency
asserting the exemption bears the burden of proof, and all doubts as to the
applicability of the exemption must be resolved in favor of disclosure.” Id.
Although FOIA “was enacted to promote honest and open government[,]
. . . access to governmental information must be ‘orderly and not so unconstrained
as to disrupt the government’s daily business.’” Grand Cent. P’ship, Inc. v. Cuomo,
166 F.3d 473, 478 (2d Cir. 1999) (quoting Ethyl Corp. v. EPA, 25 F.3d 1241, 1245 (4th
Cir. 1994)). To balance these concerns, the statute permits an agency to withhold
12 certain information pursuant to nine exemptions. 5 U.S.C. § 552(b); see also Halpern
v. FBI, 181 F.3d 279, 287 (2d Cir. 1999).
“An agency that has withheld responsive documents pursuant to a FOIA
exemption can carry its burden to prove the applicability of the claimed exemption
by affidavit.” Wilner, 592 F.3d at 73; see also Carney v. U.S. Dep’t of Justice, 19 F.3d
807, 812 (2d Cir. 1994). “Summary judgment is warranted . . . when the affidavits
describe the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed
exemption, and are not controverted by either contrary evidence in the record nor
by evidence of agency bad faith.” N.Y. Times v. CIA, 965 F.3d 109, 114 (2d Cir.
2020) (quoting Wilner, 592 F.3d at 73). Affidavits submitted by the government
“are accorded a presumption of good faith.” Carney, 19 F.3d at 812 (quotation
marks omitted). This presumption “cannot be rebutted by purely speculative
claims about the existence and discoverability of other documents.” Grand Cent.
P’ship, Inc., 166 F.3d at 489 (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991)).
II. FOIA Exemption 3
Under FOIA Exemption 3, an agency may withhold material that is
13 “specifically exempted from disclosure by statute . . . if that statute . . . (i) requires
that the matters be withheld from the public in such a manner as to leave no
discretion on the issue; or (ii) establishes particular criteria for withholding or
refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). To claim
this Exemption, the government must demonstrate that: “(1) the statute invoked
qualifies as an [E]xemption 3 withholding statute, and (2) the materials withheld
fall within that statute’s scope.” A. Michael’s Piano, Inc. v. FTC, 18 F.3d 138, 143 (2d
Cir. 1994). Here, the government invokes § 222(f) of the INA as its statutory basis
for withholding the documents at issue under Exemption 3.
Section 222(f) of the INA is entitled “Confidential nature of records,” and
provides that “[t]he records of the Department of State and of diplomatic and
consular offices of the United States pertaining to the issuance or refusal of visas
or permits to enter the United States shall be considered confidential and shall be
used only for the formulation, amendment, administration, or enforcement of the
immigration, nationality, and other laws of the United States,” with two narrow
exceptions for disclosures to courts or foreign governments. 8 U.S.C. § 1202(f).
As to the first requirement for application of Exemption 3, we conclude that
INA § 222(f) is a qualifying statute because it clearly “refers to particular types of
14 matters to be withheld,” 5 U.S.C. § 552(b)(3)(A)(ii), that is, records “pertaining to
the issuance or refusal of visas or permits to enter the United States,” INA § 222(f). 4
Accord Medina-Hincapie v. Dep’t of State, 700 F.2d 737, 741 (D.C. Cir. 1983) (“Every
court which has considered the issue has concluded that section 222(f) qualifies as
an Exemption 3 statute.”); see also Wiener v. FBI, 943 F.2d 972, 982 (9th Cir. 1991);
De Laurentiis v. Haig, 686 F.2d 192, 193 (3d Cir. 1982).
Although Spadaro concedes that the government has satisfied the first
requirement under Exemption 3, he disputes whether the government has also
made the requisite showing that the records at issue fall within INA § 222(f)’s
scope. As a threshold matter, he argues that the government cannot invoke INA
§ 222(f) for withheld documents that were reviewed by the DOS in connection
with his visa applications because they were not generated in the course of his
applications. Moreover, he asserts that, for those documents that specifically
reference visa revocation, INA § 222(f) does not apply because revocation
documents do not pertain to “the issuance or refusal of visas.” Finally, he contends
that “this Court should direct the DOS to release the [withheld] documents in the
4The government also argues that it is a qualifying statute under 5 U.S.C. § 552(b)(3)(A)(i) because, although it allows for disclosure to courts or foreign governments under limited circumstances, it confers no such discretion upon the DOS to disclose these confidential records to the public. However, we need not address this alternative argument. 15 interests of justice in this case even if INA § 222(f) otherwise bars their release.”
Appellant Br. at 31. We address each argument in turn.
1. Documents Reviewed in Connection with the Visa Applications
Spadaro applied for a visa on four occasions – in March 2006, February 2014,
October 2014, and February 2017. As relevant to this appeal, Eric F. Stein of the
DOS submitted two declarations: one regarding documents from the DOS, see Joint
App’x at 269–82, and one regarding documents referred to the DOS by the FBI, see
Joint App’x at 583–92. As to the latter declaration, Stein explains that the FBI sent
eight documents to the DOS for consultation, and information was ultimately
withheld in five of them. In these declarations, Stein sets forth his procedure for
processing Spadaro’s FOIA requests and withholding certain information
pursuant to FOIA exemptions. In addition, each declaration from Stein is
accompanied by a Vaughn index. Based on the indices, the government invoked
Exemption 3 and INA § 222(f) to withhold approximately two dozen records
(consisting of 188 pages) in full or in part. It did so, according to its Vaughn index,
because “[t]he withheld information pertains directly to the issuance or refusal of
a visa to enter the United States.” E.g., Joint App’x at 283. Specifically, the
government asserts that the withheld records were all reviewed in connection with
16 one or more of Spadaro’s visa applications, and are therefore protected by INA
§ 222(f).
Spadaro claims that the dates of the withheld documents do not correspond
to the dates of his applications for visas, and thus cannot be related to such
applications. Moreover, he highlights that because some of the documents do not
have dates, such documents cannot pertain to the issuance of a visa. Below, the
district court found that “[t]he dates attributed to the documents . . . do not
purport to indicate when the documents were reviewed in connection with a visa
application; they merely identify the dates on which the document[s] were
created.” Special App’x at 22. Thus, the district court concluded, “there is nothing
about the dates . . . that undermines the contention that those documents were
considered during the adjudication of [Spadaro’s] later-filed visa application[s].”
Special App’x at 22.
To the extent that Spadaro asserts that a document must be created in
connection with the visa application to pertain to the application under INA
§ 222(f), we find that argument unpersuasive. Although we agree with courts that
have cautioned that INA § 222(f) cannot be used “to withhold information that
was not gathered, used, nor is being used to determine an actual past or pending
17 visa application,” Darnbrough v. U.S. Dep’t of State, 924 F. Supp. 2d 213, 218 (D.D.C.
2013) (citing Immigr. Just. Clinic of Benjamin N. Cardozo Sch. of Law v. U.S. Dep’t of
State, No. 12 Civ. 1874 (GBD), 2012 WL 5177410, at *2 (S.D.N.Y. Oct. 18, 2012)), that
is not the situation here. The affidavits and Vaughn indices provide that the
documents were reviewed in connection with a visa application and ultimate
refusal of a visa. The confidentiality of documents reviewed in connection with
the visa application (and potentially also relied upon in the adjudication of that
application) is necessary to protect the thought-process of the decisionmakers, and
such documents clearly fall within the ambit of INA § 222(f), which refers broadly
to protecting documents “pertaining to the issuance or refusal of visas,” rather
than only documents submitted by the visa applicant. See Medina-Hincapie, 700
F.2d at 744. The government’s affidavits addressing this issue are “accorded a
presumption of good faith,” Wilner, 592 F.3d at 69 (quotation marks omitted), and
Spadaro has not adequately rebutted the claim that the records were reviewed as
part of his visa application processes.
Thus, this case is unlike Darnbrough, in which the DOS conceded that the
document at issue was not related to any process to obtain a visa or permit, but
rather was simply contained in a database. 924 F. Supp. 2d at 218–19; see also
18 Immigr. Just. Clinic of Benjamin N. Cardozo Sch. of Law, 2012 WL 5177410, at *1 (INA
§ 222(f) did not permit withholding of document when it was “undisputed that
there has never been any actual visa application”). In short, because there were
visa applications submitted by Spadaro, and the government affirms, without
dispute, that the withheld documents were reviewed for one or more of those
applications, see Joint App’x at 283–94, we conclude that the district court correctly
determined that these documents fall within the scope of INA § 222(f) and are
protected from disclosure under Exemption 3.
2. Visa Revocation Records
Spadaro also challenges the district court’s ruling that Exemption 3 applies
to two documents referenced in the DOS’s Vaughn index that are entitled “Visa
Revocation Service” and “Revocation Case.” 5 Joint App’x at 294–95. Spadaro
asserts that, under the statutory framework, revocation documents are distinct
from documents that relate to the issuance or refusal of visas, and thus are not
shielded from disclosure. More specifically, his argument requires us to consider
5As an initial matter, Spadaro argues the fact that the DOS identified only two documents about his prudential revocation “seems impossible.” Appellant Br. at 20. Spadaro’s unfounded speculation about the number of documents available is not enough to overcome the presumption of good faith afforded the affidavits. Thus, we reject any such challenge to the sufficiency of the agency’s declarations regarding the documents that it found. See Grand Cent. P’ship, Inc., 166 F.3d at 489. 19 whether documents that relate solely to the revocation of a visa “pertain[] to the
issuance or refusal of visas or permits to enter the United States,” and thus fall
within the ambit of INA § 222(f). We hold today, as a matter of first impression in
this Circuit, that they do.
The government argues that “the term ‘issuance’ of visas encapsulates later
actions, such as revocation, that inherently implicate (by revisiting and nullifying)
the underlying decision to issue a visa in the first place.” Appellees Br. at 18. The
district court below agreed. In doing so, it adopted the reasoning of Soto v. United
States Department of State, in which a federal district court in the District of
Columbia found that “[i]t is not difficult to see how records that document the
revocation of a visa—or that were relied upon in the course of revoking a visa—
could ‘pertain[] to the issuance or refusal of [a] visa[].’” No. CV 14-604, 2016 WL
3390667, at *3 (D.D.C. June 17, 2016) (quoting 8 U.S.C. § 1202(f)). In reaching this
decision, the district court in Soto recognized that “[a]lthough the issuance of a visa
is undoubtedly a ‘distinct’ act from the revocation of that same visa, the relevant
question is not one of equivalence but of pertinence.” Id. at *4 (citation omitted).
The district court also examined the structure of the INA, finding relevant the fact
that 8 U.S.C. § 1201(i), which gives the DOS the power to revoke visas, is found
20 within a section entitled “Issuance of Visas.” Id. It therefore concluded that
documents pertaining to visa revocation fell within the ambit of INA § 222(f). Id.
Spadaro, instead, relies on a district court in this Circuit, which held that
material relating to visa revocations is not covered by INA § 222(f). In El Badrawi
v. Department of Homeland Security, the district court, relying on the language of the
statute as well as the canon of expressio unius, reasoned that “while both ‘issuance’
and ‘refusal’ of visas are explicitly mentioned, ‘revocation’ is not.” 583 F. Supp.
2d 285, 311 (D. Conn. 2008). Thus, the district court held that “records pertaining
to visa revocation are not protected under the INA.” Id. The court also examined
the legislative history of the statute, which it concluded provided further support
for its determination that Exemption 3 did not cover visa revocation records. Id.
at 312; see also Mantilla v. U.S. Dep’t of State, No. 12-21109-CIV, 2012 WL 4372239,
at *4 (S.D. Fla. Sept. 24, 2012) (same); Guerra v. United States, No. C09-1027RSM,
2010 WL 5211613, at *2 (W.D. Wash. Dec. 15, 2010) (declining to “broaden the reach
of this statutory language” by applying the statute to requests for hardship
waivers).
Although exemptions under FOIA “must be narrowly construed,” Dep’t of
Air Force v. Rose, 425 U.S. 352, 361 (1976), we agree with the analysis in Soto and
21 conclude that the plain language of INA § 222(f) encompasses visa revocations.
When interpreting a statute, we begin with the plain language of the statute,
“giving the statutory terms their ordinary or natural meaning.” United States v.
Lockhart, 749 F.3d 148, 152 (2d Cir. 2014) (quotation marks omitted). When that
meaning is not clear, we make use of “a variety of interpretive tools, including
canons, statutory structure, and legislative history.” Id.; see also United States v.
Dauray, 215 F.3d 257, 264 (2d Cir. 2000) (“When the plain language and canons of
statutory interpretation fail to resolve statutory ambiguity, we will resort to
legislative history.”). However, “[w]hen the language of a statute is unambiguous,
‘judicial inquiry is complete.’” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 290
(2d Cir. 2002) (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992)); see
also Lee v. Bankers Tr. Co., 166 F.3d 540, 544 (2d Cir. 1999) (“Legislative history and
other tools of interpretation may be relied upon only if the terms of the statute are
ambiguous.”).
In this case, INA § 222(f), as a qualifying statute under Exemption 3, keeps
matters “pertaining to the issuance or refusal of visas or permits to enter the
United States” confidential. Although the statutory language refers only to
issuances or refusals on its face, the use of the word “pertaining” makes clear that
22 the reach of the statute is not so limited. “Pertain” is defined as “[t]o relate directly
to; to concern or have to do with.” Pertain, Black’s Law Dictionary (11th ed. 2019);
see also Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992) (explaining that
the ordinary meaning of the phrase “relating to,” in the Federal Aviation Act, “is
a broad one—‘to stand in some relation; to have bearing or concern; to pertain;
refer; to bring into association with or connection with’” (quoting Black’s Law
Dictionary (5th ed. 1979))). Thus, we conclude that the use of the broad phrase
“pertaining to” plainly gives the statute a wider reach than mere issuances and
refusals. See, e.g., Airaj v. United States, No. CV 15-983, 2016 WL 1698260, at *8
(D.D.C. Apr. 27, 2016) (“The plain language of the statute, which encompasses
records ‘pertaining’ to the issuance or refusal of visas, discourages such a strict
interpretation of Section 222(f).”), aff’d sub nom. Airaj v. U.S. Dep’t of State, No. 16-
5193, 2017 WL 2347794 (D.C. Cir. Mar. 30, 2017).
Applying that broad phrase to the circumstances here, it is clear that the
revocation of a visa pertains to the issuance of a visa because they are so closely
related – namely, a revocation constitutes a nullification of that issuance. See Soto,
2016 WL 3390667, at *3–4; see also Vizcarra Calderon v. U.S. Dep’t of Homeland Sec.,
No. 18-CV-764, 2020 WL 805212, at *3 (D.D.C. Feb. 18, 2020) (relying on Soto to find
23 that a document similarly entitled “Visa Revocation Services” was properly
withheld under Exemption 3). Indeed, a visa can never be revoked without first
being issued. As the court in Soto aptly described it, “the issuance and revocation
of visas represent two sides of the same coin.” See Soto, 2016 WL 3390667, at *4.
Indeed, by way of analogy, it is clear that a refund receipt for a product would be
a document “pertaining to” the purchase of that product. Because we agree that
the question here is one of pertinence, not equivalence, id., we hold that the plain
language of INA § 222(f) encompasses revocation documents.
Like the court in Soto, we are unpersuaded by the analysis in El Badrawi¸
which focused on the terms “issuance” and “refusal” and relied upon the canon
of expressio unius – namely, the explicit mention of one thing is the exclusion of
another left unmentioned – to determine that INA § 222(f) did not reach
revocations. See 583 F. Supp. 2d at 311. As a threshold matter, we rely upon canons
of construction only if the language of the statute is ambiguous, which is not the
situation here. See Power Auth. v. M/V Ellen S. Bouchard, 968 F.3d 165, 170 (2d Cir.
2020) (“Only if the text is ambiguous do we ‘turn to canons of statutory
construction for assistance in interpreting the statute.’” (quoting Greathouse v. JHS
Sec. Inc., 784 F.3d 105, 111 (2d Cir. 2015))). In any event, even if there were
24 ambiguity here, the statutory structure also supports our conclusion. See Lexecon
Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 36 (1998) (“[A] statute is
to be considered in all its parts when construing any one of them.”); see also Bloom
v. Azar, --- F.3d ---, 2020 WL 5648519, at *3 & n.1 (2d Cir. 2020) (because the expressio
unius canon is particularly dependent on context, “[t]he Supreme Court has often
declined to rely on the . . . canon when it is insufficiently sensitive to context”). As
explained by the court in Soto, although INA § 222(f) appears in a section of the
INA entitled “Application for visas,” 8 U.S.C. § 1202, the subsection of the INA
that provides for the revocation of visas, 8 U.S.C. § 1201(i), appears in a section of
the Act entitled “Issuance of visas,” see 8 U.S.C. § 1201. Thus, even assuming
arguendo that the language of INA § 222(f) was ambiguous, its application to
revocations is certainly buttressed by the fact that Congress used the title
“Issuance of visas” to cover not just the initial issuance of the visa, but also
intertwined acts such as visa renewals, non-issuances, and revocations. 8 U.S.C.
§ 1201(c), (g), (i).
We similarly disagree with Spadaro’s reliance, as well as that of the district
court in El Badrawi, on later amendments to the INA to glean congressional intent
on this issue. Examining a later amendment to the INA, the court in El Badrawi
25 reasoned that Congress:
continued to treat visa revocations separately from issuances and refusals. See Pub. L. 108–458, 118 Stat. 3638. For example, § 5304 of that Act, entitled “Revocation of Visas and Other Travel Documentation,” can be contrasted with § 5302, “Visa Application Requirements.” Id. The fact that the two procedures are addressed in distinct sections of the legislation evidences an intent on the part of the lawmakers that visa revocation be treated as distinct from visa application (i.e., issuance or refusal of visas). Beyond mere titles, however, the legislation made discrete distinctions substantively. See Pub. L. 108–458 § 5304, 118 Stat. 3638, 3736 (changing judicial review for visa revocation, but not for issuance or denial).
583 F. Supp. 2d at 311–12. We must emphasize the Supreme Court’s “oft-repeated
warning that the views of a subsequent Congress form a hazardous basis for
inferring the intent of an earlier one.” Consumer Prod. Safety Comm’n v. GTE
Sylvania, Inc., 447 U.S. 102, 117 (1980) (quotation marks omitted). That hazard is
magnified where, as here, the subsequent amendments did not relate to the
particular provision at issue and were done for an entirely different purpose.
Rather, these amendments were enacted in 2004 as part of the Intelligence Reform
and Terrorism Prevention Act, which sought to “reform the intelligence
community and the intelligence and intelligence-related activities of the United
States [g]overnment.” Pub. L. No. 108-458, 118 Stat. 3638 (Dec. 17, 2004). As the
government correctly notes, “the fact that Congress treated revocation and
26 issuance of visas differently for the purposes of reforming the existing revocation
and issuance processes says nothing about Congress’s earlier decision to treat
revocations within the umbrella of visa issuance in § 1201, much less about the
congressional decision to make records regarding visas confidential in § 1202.”
Appellees Br. at 17. In short, we conclude that these subsequent amendments have
no weight in discerning congressional intent on the issue before us.
Finally, in a last-ditch effort, Spadaro attempts to distinguish the way in
which his visa was revoked by the DOS and the way in which the revocations
occurred in Soto and similar cases that found in the government’s favor. He asserts
that, although the plaintiffs in those cases had their visas revoked abroad under
§ 222(c), his visa was revoked under § 221(i) in Washington, D.C. He thus suggests
that, because the revocation of his visa was a prudential revocation by the DOS
rather than a consular revocation that took place overseas, the need to protect the
confidentiality of the thought-process for overseas consular revocations does not
apply with equal force to his domestic revocation. Spadaro, however, points to no
case that has relied on such geographic limitations, and we find no reason to read
27 such a limitation into the statute. 6
Our broader interpretation of the statute comports with the view that “[t]he
scope of section 222(f) is not limited to information supplied by the visa
applicant[;] it includes information revealing the thought-processes of those who
rule on the application.” Medina-Hincapie, 700 F.2d at 744. Spadaro fails to offer
any convincing reason why Congress would not seek to protect the thought-
processes of those ruling on revocations to the same extent as those ruling on
issuances or refusals of visas, or would be more concerned with protecting the
thought-processes on such matters of overseas consular officials as compared to
DOS officials in the United States. Therefore, even if we were to determine that
the statute was ambiguous, the purpose of INA § 222(f) would dictate that the
confidentiality of revocation documents be included within its scope. See
Connecticut ex rel. Blumenthal v. U.S. Dep’t of the Interior, 228 F.3d 82, 89 (2d Cir.
2000) (holding that if a statute is ambiguous, we must “construct an interpretation
that comports with [the statute’s] primary purpose and does not lead to
anomalous or unreasonable results”).
6 We also highlight that the plain text of INA § 222(f) refers to “[t]he records of the Department of State and of diplomatic and consular offices of the United States,” 8 U.S.C. § 1202(f) (emphasis added), further undercutting Spadaro’s attempt to insert a geographic limitation. 28 Accordingly, we conclude that the DOS officials properly invoked
Exemption 3, and specifically INA § 222(f), to withhold the revocation documents.
3. Releasing the Records in the Interest of the Ends of Justice
Spadaro alternatively argues that even if INA § 222(f) applies pursuant to
Exemption 3, the documents should be released in the interest of the ends of
justice. Under INA § 222(f)(1), the Secretary of State may release certified copies
of such records if a court “certifies that the information contained in such records
is needed by the court in the interest of the ends of justice in a case pending before
the court.” Spadaro contends that “[g]iven the Government’s undisputed misuse
of this material to Spadaro’s detriment, and Spadaro’s inability to defend himself
from these Government actions, this Court should direct the DOS to release the
documents in the interests of justice in this case even if INA § 222(f) otherwise bars
their release.” Appellant Br. at 31.
Spadaro has not adequately demonstrated that this Court or any other court
requires the particular material, and he cannot rely on this subsection of the INA
“to request documents from the Secretary merely for the purpose of turning those
documents over to an unsuccessful FOIA applicant.” Soto v. U.S. Dep’t of State, 118
F. Supp. 3d 355, 371 (D.D.C. 2015). In other words, the function of this narrow
29 exception is to allow the DOS to disclose such documents in pending court
proceedings, separate and apart from a FOIA action, where the court certifies its
need for such documents. Therefore, the limited circumstances in which a court
has relied on this subsection include a request for documents pertaining to a
criminal matter, United States v. O’Keefe, No. 06-CR-0249, 2007 WL 1239204, at *2
n.1 (D.D.C. Apr. 27, 2007) (“There can be no question that in a criminal case
regarding the handling of requests within a consulate, consular records are
‘needed by the Court in the interest of the ends of justice’ within the meaning of
this statute.”), and a request from the parties in order to allow the district court to
ascertain the basis of the defendants’ determination that the plaintiff was
inadmissible, Tran v. Rice, No. 06-CV-02697-H, 2007 WL 9776703, at *1 (S.D. Cal.
May 1, 2007).
In short, Spadaro has failed to meet his burden of demonstrating that the
records are needed by a court “in the interest of the ends of justice,” and the
discretionary release of records under § 1202(f)(1) provides no basis for disclosure
in this FOIA action.
CONCLUSION
In sum, we conclude that the documents at issue are protected from
30 disclosure under Exemption 3 because they pertain to the issuance or refusal of
visas to enter into the United States. 7 Accordingly, for the foregoing reasons and
the reasons stated in our separate summary order filed today, the judgment of the
district court is AFFIRMED.
7Because the Court concludes that the documents were all properly withheld under Exemption 3, the Court need not reach Spadaro’s argument regarding Exemption 7(E). 31