Jibril v. Mayorkas

• Decision Date: 21 December 2021
• Docket Number: No. 20-5202,20-5202
• Citation: 20 F.4th 804
• Parties: Mohammed JIBRIL, individually, and on behalf of their minor children Y.J., and O.J., et al., Appellants v. Alejandro N. MAYORKAS, in his official capacity as secretary of the Department of Homeland Security, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

20 F.4th 804

Mohammed JIBRIL, individually, and on behalf of their minor children Y.J., and O.J., et al., Appellants

v.Alejandro N. MAYORKAS, in his official capacity as secretary of the Department of Homeland Security, et al., Appellees

No. 20-5202

United States Court of Appeals, District of Columbia Circuit.

Argued September 20, 2021

Decided December 21, 2021

Christina A. Jump argued the cause for appellants. With her on the briefs was Charles D. Swift.

Joshua Waldman, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Brian M. Boynton, Acting Assistant Attorney General, and Sharon Swingle, Attorney.

Before: Henderson and Walker, Circuit Judges, and Edwards, Senior Circuit Judge.

Edwards, Senior Circuit Judge:

In 2018, during extended airline trips, the members of the Jibril family ("Jibrils" or "Appellants"), a family of U.S. citizens, were forced to endure extensive and intrusive security screenings at domestic and international airports. As a result of these encounters with Government agents, the Jibrils believed that they were on a terrorist watchlist maintained by the U.S. Government. They initially invoked an administrative redress process to challenge their alleged inclusion on the watchlist. However, Government officials refused to disclose the family's watchlist status.

Finding the Government's response inadequate to safeguard them from similar treatment in the future, the Jibrils filed suit in the District Court against the Secretary of the Department of Homeland Security and various other federal Government officials (collectively, "Government"). Their complaint alleges violations of the Fourth and Fifth Amendments and the Administrative Procedure Act, and it seeks declaratory and injunctive relief. The Government filed a motion to dismiss, which the District Court granted, with prejudice, on the ground that Appellants lacked Article III standing. Jibril v. Wolf , No. 19-cv-2457, slip op. at 6-10, 2020 WL 2331870 (D.D.C. May 9, 2020), reprinted in Joint Appendix ("J.A.") 161-65. The Jibrils now appeal.

Before this court, the Government contends that the judgment of the District Court should be affirmed because the Jibrils' complaint fails to adequately allege any imminent threat of future injury. We disagree. The Jibrils have plausibly alleged that they have future travel plans. We easily infer from the family's travel history that they will soon fly again, particularly if they secure the relief they now seek. Furthermore, the Jibrils' uncontested factual allegations, combined with the reasonable inferences we draw from them, plausibly indicate that the family likely appeared on a terrorist watchlist in 2018. The Jibrils also plausibly allege that the treatment they endured went well beyond what typical travelers reasonably expect during airport screenings. Finally, the Jibrils' factual allegations lead to the reasonable inference that the family's watchlist status remains the same today. Any information to the contrary is within the Government's exclusive control, and we must draw all reasonable inferences in the Jibrils' favor at this stage of the litigation.

Because the Jibrils plausibly allege that they will travel again soon and that they will again endure the alleged illegalities, they have established an imminent threat of future injury. Therefore, for the reasons that we explain below, we conclude that the Jibrils have standing to pursue most of their claims for prospective relief. However, we hold that the Jibrils lack standing to pursue prospective relief relating to certain actions taken by Government agents who detained them during their travel in 2018. The Jibrils claim that these actions violated established federal policies, but they lack standing because they have not plausibly alleged any impending or substantial risk of future harm. Accordingly, we affirm in part and reverse in part the District Court's judgment and remand the case for further proceedings.

I. BACKGROUND

A. Statutory and Regulatory Framework

The Federal Bureau of Investigation ("FBI") administers the multi-agency Terrorist Screening Center, which manages and operates the Terrorist Screening Database ("Database"). Terrorist Screening Center , FBI, https://www.fbi.gov/about/leadership-and-structure/national-security-branch/tsc (last visited Nov. 29, 2021). The Database has at least two subsets intended to identify individuals who may pose a threat to civil aviation: the "No Fly List" and the "Selectee List." See Matar v. Transp. Sec. Admin. , 910 F.3d 538, 540 (D.C. Cir. 2018). "Individuals on the No Fly [L]ist are prohibited from boarding airplanes that are traveling to the United States, while individuals on the Selectee List" may fly but "are subject to more rigorous screening" than most passengers. Id. People appearing on the Selectee List are not notified about their placement on or removal from the list. Compl. ¶ 76, J.A. 14.

Selectee List travelers almost always receive enhanced screening at border crossings, including airports. Id. ¶ 61, J.A. 12. They typically have "SSSS" printed on their boarding passes, which stands for Secondary Screening Security Selection. Id. ¶¶ 62-63, J.A. 12; see also 49 C.F.R. § 1560.105(b)(2) (2018) (requiring airlines to identify passengers selected by the Transportation Security Administration ("TSA") for enhanced screening). Usually, Selectee List travelers cannot obtain boarding passes at kiosks or on their cell phones and instead must speak with airline staff at ticketing counters, who then must contact government agents before issuing the passes. Compl. ¶¶ 64-65, J.A. 13.

An individual who "believes he or she has been improperly or unfairly delayed or prohibited from boarding an aircraft" because he or she appears on the Selectee List may seek redress through the Traveler Redress Inquiry Program ("TRIP") administered by the Department of Homeland Security ("DHS"). 49 C.F.R. § 1560.205(a), (b) (2018). The individual must submit "personal information and copies of the specified identification documents" to the TRIP office, and TSA may request additional information as needed. Id. § 1560.205(c).

"[I]n coordination with the [Terrorist Screening Center] and other appropriate Federal law enforcement or intelligence agencies, if necessary," TSA then "review[s] all the documentation and information requested from the individual, correct[s] any erroneous information, and provide[s] the individual with a timely written response." Id. § 1560.205(d). The response neither confirms nor denies the individual's inclusion on the Selectee List. Compl. ¶ 83, J.A. 15. According to the Government, an individual's Selectee List status is covered by the law enforcement privilege and statutorily protected as Sensitive Security Information restricted from public access. Final Br. for Appellees 11 (citing 49 U.S.C. § 114(r) and 49 C.F.R. § 1520.5(a) ); see also Matar , 910 F.3d at 540 (citing § 1520.5(b)(9)(ii) ).

B. Facts and Procedural History

"Because we review the adequacy of the complaint as a matter of pleading, and not the truth of its allegations, the facts recited here are as [the Jibrils] allege[ ] them, with reasonable inferences drawn in the [Jibrils'] favor. We take no position on what might ultimately be proved." VoteVets Action Fund v. U.S. Dep't of Veterans Affs. , 992 F.3d 1097, 1102 (D.C. Cir. 2021).

Appellants are the married couple Mohammed Jibril ("Mr. Jibril") and Aida Shahin ("Ms. Shahin") and their adult and minor children: Ala'a Jibril, Khalid Jibril, Hamza Jibril, Y.J., and O.J. Compl. ¶¶ 1-7, J.A. 6; Final Br. in Chief for Appellants ii. The Jibrils have sued the following federal officials in their official capacities: Secretary of DHS, Administrator of TSA, Commissioner of Customs and Border Protection ("CBP"), Attorney General, Director of the FBI, and Director of the Terrorist Screening Center. Compl. ¶¶ 8-13, J.A. 6.

Ms. Shahin and Mr. Jibril are U.S. citizens of Jordanian national origin. Id. ¶¶ 1-2, J.A. 6. Their children are also U.S. citizens. Id. ¶¶ 3-7, J.A. 6. The Jibrils live in California. Id. ¶¶ 1-7, J.A. 6. The Jibril family has routinely traveled to Jordan every two to three years, id. ¶ 140, J.A. 20, and Mr. Jibril has visited relatives in Jordan between twelve and fifteen times over the past twenty-five years, id. ¶ 141, J.A. 20. The Jibrils are Muslims with sincerely held religious beliefs that require traveling to Saudi Arabia to complete Hajj and pilgrimage obligations. Id. ¶ 122, J.A. 18. In addition to needing to travel overseas to fulfill these obligations, "the Jibril family wishes to travel to Jordan to see family in the near future, as consistent with their prior travel patterns." Id. ¶ 139, J.A. 20.

In 2018, the Jibrils traveled to the Middle East to visit family in Jordan. Id. ¶ 94, J.A. 16. After arriving at the airport in Los Angeles for their departing flight, they waited about one hour to receive their boarding passes, all of which had "SSSS" printed on them. Id. ¶ 96, J.A. 16. The family members were then searched for about two hours. Id. ¶ 97, J.A. 16. During the searches, all members of the family – including the minor children – were subject to pat-down searches. Id. Neither Mr. Jibril nor Ms. Shahin was asked for permission prior to the minor children's pat-down searches. Id. ¶ 98, J.A. 16. DHS agents then met the Jibrils at the gate for their departing flight. Id. ¶ 99, J.A. 16. The agents took the family to a private area and searched their luggage. Id. ¶ 100, J.A. 16. Due to this extensive screening, the Jibrils nearly missed their flight. Id. ¶ 101, J.A. 16. Once the family arrived in Jordan, they "were interrogated for about two hours," id. ¶ 102, J.A. 16, although the complaint does not specify by whom.

The Jibrils remained in Jordan for two months and then began their trip home to California. Id. ¶ 103, J.A. 17. "At the Jordanian airport, [Mr.] Jibril was told that American officials ha[d] an...