Ibrahim v. Dep't of Homeland Sec.

Decision Date08 February 2012
Docket NumberNo. 10–15873.,10–15873.
PartiesRahinah IBRAHIM, an individual, Plaintiff–Appellant, v. DEPARTMENT OF HOMELAND SECURITY; Michael Chertoff, in his official capacity as the former Secretary of the Department of Homeland Security; Tom Ridge, in his official capacity as the former Secretary of the Department of Homeland Security; Terrorist Screening Center; Donna Bucella, in her official capacity as former Director of the Terrorist Screening Center; Federal Bureau of Investigation; Robert S. Mueller, III, in his official capacity as Director of the Federal Bureau of Investigation; Janet Napolitano, in her official capacity as Secretary of the Department of Homeland security; Eric H. Holder Jr., Attorney General, in his official capacity as Attorney General; Arthur M. Cummings, II, in his official capacity as Executive Assistant Director of the FBI's National Security Branch; National Counterterrorism Center; Michael E. Leiter, in his official capacity as Director of the National Counterterrorism Center; Department of State; Hilary Clinton, in her official capacity as Secretary of State, Defendants–Appellees,andJohn Bondanella, an individual; US Investigations Services, Inc., a Virginia corporation; City and County of San Francisco; San Francisco Airport; San Francisco Police Department; Richard Pate, an individual; John Cunningham, an individual; Elizabeth Maron, an individual, Defendants.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HERE

James McManis, Marwa Elzankaly, Christine Peek, Elizabeth Pipkin, McManis Faulkner, San Jose, CA, for the appellant.

Paul G. Freeborne, Douglas Neal Letter, Joshua P. Waldman, U.S. Department of Justice, Washington, DC, for the appellees.

Veena Dubal, Asian Law Caucus, San Francisco, CA, and Maria V. Morris, Sanford Jay Rosen, Rosen Bien & Galvan, LLP, San Francisco, CA, for the amici curiae.Appeal from the United States District Court for the Northern District of California, William H. Alsup, District Judge, Presiding. D.C. No. 3:06–cv–00545–WHA.Before: DOROTHY W. NELSON and WILLIAM A. FLETCHER, Circuit Judges, and KEVIN THOMAS DUFFY, District Judge.*Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge DUFFY.

OPINION

W. FLETCHER, Circuit Judge:

Plaintiff Rahinah Ibrahim is a citizen of Malaysia and mother of four children. She was legally in the United States from 2001 to 2005 as a Ph.D. student at Stanford University. She alleges that the U.S. government has mistakenly placed her on the “No–Fly List” and other terrorist watchlists. On January 2, 2005, she attempted to travel to a Stanford-sponsored conference in Malaysia where she was to present her doctoral research. She was prevented from flying and was detained in a holding cell for two hours at the San Francisco airport. She was allowed to fly to Malaysia the next day, but she was prevented from returning to the United States after the conference. Ibrahim has not been permitted to return to the United States.

Ibrahim brought suit in federal district court seeking, among other things, injunctive relief under the First and Fifth Amendments, with the ultimate aim of having her name removed from the government's watchlists. The district court denied injunctive relief. We reverse and remand for further proceedings.

I. Factual Background
A. Ibrahim's Departure

Ibrahim is Associate Professor and Deputy Dean of Research, Postgraduate Studies and International Affairs at the Faculty of Design and Architecture of the University Putra Malaysia in Serdang, Malaysia. She has a Ph.D. in Construction Engineering and Management from Stanford University in California, where she studied from 2001 to 2005 under a student visa.

This case has never gone beyond the complaint stage. For the narrative that follows, we rely on allegations in Ibrahim's complaint and on statements in her declaration in the district court, assuming those allegations and statements to be true for purposes of our review. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007).

On January 2, 2005, Ibrahim attempted to fly to Kuala Lumpur, Malaysia, to present the results of her doctoral research at a Stanford-sponsored conference. She arrived at the San Francisco airport at about 7 a.m. for a 9 a.m. flight, accompanied by her 14–year old daughter and a friend. She requested wheelchair assistance to the gate because she was recovering from medical complications from a hysterectomy. When Ibrahim tried to check in at the ticket counter, a United Airlines employee, David Nevins, discovered her name on the federal government's No–Fly List. Instead of issuing her a boarding pass, Nevins called the San Francisco police.

When San Francisco police officers arrived, they called the Transportation Security Operations Center,1 a division of the federal Transportation Security Agency (“TSA”). A federal contractor employed by U.S. Investigation Services, Inc., John Bondanella, answered the call. Bondanella told the police to prevent Ibrahim from flying, to contact the FBI, and to detain Ibrahim for questioning.

At 8:45 a.m., fifteen minutes before her flight was scheduled to leave, San Francisco police officers handcuffed Ibrahim. They took her to a police station in the airport, searched her, and locked her in a holding cell. No one explained to Ibrahim why she had been arrested and detained. After about two hours, the FBI requested that the officers release her. Ibrahim was told by an unspecified person that her name no longer appeared on the No–Fly List.

The next day, Ibrahim went to the San Francisco airport to catch a different flight. An unspecified person told her that she was again (or still) on the No–Fly List. She was nonetheless allowed to fly to the Stanford-sponsored conference in Malaysia. She was subjected to enhanced screening at the San Francisco airport and at all stops en route to Kuala Lumpur.

Ibrahim was scheduled to return to Stanford to complete work on her Ph.D. on March 10. But when she arrived at the Kuala Lumpur airport, she was told by a ticketing agent that she would have to wait for clearance from the United States Embassy before she could board. Another ticketing agent told her that a note by her name instructed airport personnel to call the police and have her arrested. Ibrahim was not arrested but was prevented from boarding her scheduled return flight. She has never been permitted to return to the United States.

On March 24, 2005, Ibrahim submitted a request through TSA's “Passenger Identity Verification” program to clear her name. TSA failed to respond for approximately one year, and only did so after Ibrahim filed this suit. In a form letter, TSA responded to Ibrahim's request by explaining that [if] it has been determined that a correction to records is warranted, these records have been modified.” The letter did not state whether Ibrahim was, or was not, on the No–Fly List or other terrorist watchlists.

On April 14, 2005, an American consul in Malaysia sent Ibrahim a letter informing her that the Department of State had revoked her student visa on January 31, 2005, a month after her departure from the United States. The letter cited Ibrahim's “possible ineligibility” under § 212(a)(3)(B) of the Immigration & Nationality Act (INA) as the reason for the revocation. That section of the INA provides, among other things, that [a]ny alien” (1) who “has engaged in terrorist activity”; (2) who “a consular officer, the Attorney General, or the Secretary of Homeland Security knows, or has reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activity”; or (3) who “has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity,” is inadmissible to the United States. 8 U.S.C. § 1182(a)(3)(B). The letter further stated that revocation of Ibrahim's visa did “not necessarily indicate that [she was] ineligible to receive a U.S. visa in the future.” “That determination,” the letter continued, “can only be made at such time as you apply for a new visa.” Ibrahim applied for a new visa after she filed this lawsuit. We take judicial notice that the Department of State denied her application on December 14, 2009, during the pendency of this appeal. In a form letter with a series of boxes, a consular officer marked a box indicating that INA § 212(a)(3)(B) formed the basis of the denial of her visa. The letter did not explain how the consular officer arrived at his determination that she was suspected of terrorist activities.

Ibrahim's inability to return to the United States has limited her academic and professional activities. She currently participates in a long-term project with Stanford to improve Malaysia's construction industry. If she were not prevented from doing so, she would return to Stanford once a year to work on the project. The Malaysian university where Ibrahim currently teaches participated in a summer program at Stanford's Center for Integrated Facility Engineering. Although Ibrahim was her school's representative to Stanford, she was unable to participate in the program. Ibrahim collaborates with Stanford Professors Raymond Levitt and Renate Fruchter, and has co-authored several papers with Professor Fruchter. Ibrahim has stated in an affidavit that she is “occasionally able to meet face-to-face with U.S. citizens outside the United States” but has “otherwise had to use video conferencing and email instead, both of which are poor substitutes for face-to-face contact.” Selangor, a provincial government in Malaysia, also asked Ibrahim to act as its representative at a conference in San Francisco but she was unable to attend.

Ibrahim has close friends at Stanford whom she remains unable to visit. Her thesis advisor at Stanford, Professor Boyd Paulson, died in December 2005. Professor...

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