United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued November 8, 2019 Decided December 6, 2019 No. 18-5302 KAY KHINE AND CATHOLIC CHARITIES, APPELLANTS v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, APPELLEE Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-01924) David Cleveland argued the cause and filed the briefs for plaintiffs-appellants. Matthew J. Glover, Counsel to the Assistant Attorney General, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, and R. Craig Lawrence and Peter C. Pfaffenroth, Assistant U.S. Attorneys. Before: SRINIVASAN, MILLETT, and PILLARD, Circuit Judges. Opinion for the Court filed by Circuit Judge PILLARD. 2 PILLARD, Circuit Judge: Kay Khine is an asylum seeker from Myanmar. With assistance from Catholic Charities of Washington, Khine filed a Freedom of Information Act (FOIA) request with the Department of Homeland Security (DHS) seeking documents relating to her asylum application. DHS responded with an initial determination stating the number of responsive pages, the number of pages that DHS was disclosing in full and in part, the number of pages that DHS was withholding or referring to another agency for further processing, and a list and definitions of the various exemptions that DHS asserted applied to the withheld pages. Rather than appealing that initial determination within the agency, Khine and Catholic Charities immediately filed suit in district court, claiming that the agency’s initial determination was part of an agency pattern of deficient FOIA initial responses, and inadequate even to trigger her obligation to exhaust her administrative remedies. The district court granted DHS’ motion to dismiss on the ground that Khine had failed to exhaust her administrative remedies before seeking judicial review. We agree and affirm the district court’s judgment. I. In February 2017, Khine, with Catholic Charities’ help, sought under FOIA (1) a copy of her I-94 (her Arrival/Departure Record); (2) a copy of her asylum officer’s notes; (3) a copy of her asylum officer’s assessment; and (4) a copy of her entire file. The agency acknowledged receipt of the FOIA request eleven days later, stating that the request had been placed in DHS’ “complex track” and would be handled according to its default “first-in, first-out” processing system. Eggleston Decl. ¶¶ 8-9 (J.A. 41-42). 3 In July 2017, DHS sent Khine an initial determination. The determination explained that DHS had identified 871 responsive pages, and that it was disclosing 849 pages in full and 11 pages in part, withholding 8 non-segregable pages in full, and referring 3 pages of “potentially responsive documents that may have originated from U.S. Immigration and Customs Enforcement” to that agency’s FOIA office for review and disclosure as appropriate. DHS Initial Determination at 1 (J.A. 22). In addition, the agency explained that it had reviewed the withheld documents and determined to “release all information except those portions that are exempt pursuant to 5 U.S.C. § 552a(d)(5), (j)(2) and (k)(2) of the [Privacy Act] and 5 U.S.C. § 552(b)(5), (b)(7)(C) ...
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