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, 

(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, 

, 105
(2d Cir.), opinion amended on denial of reh’g, 

(2d Cir.), supplemented, 

(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., 

, 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, 

, 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.”

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,

, 478 (2d Cir. 1999) (quoting Ethyl Corp. v. EPA, 

, 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, 

, 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.” 

; see also Carney v. U.S. Dep’t of Justice, 

, 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, 

, 114 (2d Cir.

2020) (quoting 

). Affidavits submitted by the government

“are accorded a presumption of good faith.” 

(quotation

marks omitted). This presumption “cannot be rebutted by purely speculative

claims about the existence and discoverability of other documents.” Grand Cent.

P’ship, 

(quoting SafeCard Servs., Inc. v. SEC, 

, 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, 

, 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, 

, 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, 

, 982 (9th Cir. 1991);

De Laurentiis v. Haig, 

, 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, 

, 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), 

, 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 

. The government’s affidavits addressing this issue are “accorded a

presumption of good faith,” 

(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 

–19; see also



                                          18
Immigr. Just. Clinic of Benjamin N. Cardozo Sch. of Law, 

, 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, 

.
                                           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, 

, 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.”

(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.”

that

documents pertaining to visa revocation fell within the ambit of INA § 222(f).

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.” 

285, 311 (D. Conn. 2008). Thus, the district court held that “records pertaining

to visa revocation are not protected under the INA.”

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.

see also Mantilla v. U.S. Dep’t of State, No. 12-21109-CIV, 

,

at *4 (S.D. Fla. Sept. 24, 2012) (same); Guerra v. United States, No. C09-1027RSM,

, 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, 

, 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, 

, 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, 

, 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, 

, 290

(2d Cir. 2002) (quoting Conn. Nat’l Bank v. Germain, 

, 254 (1992)); see

also Lee v. Bankers Tr. Co., 

, 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., 

, 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, 

, 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, 

(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,

, at *3–4; see also Vizcarra Calderon v. U.S. Dep’t of Homeland Sec.,

No. 18-CV-764, 

, 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, 

, 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

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 

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, 

, 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., 

, 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, 

, 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 ---, 

, 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.”

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 

–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., 

, 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.” 

. 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, 

, 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, 

, 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, 

, 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, 

, 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