Thursday, February 9, 2012
Ninth Circuit Says Student Can Challenge No-Fly Listing
Alien Denied Visa Retained ‘Significant Voluntary Connection’ to This Country—Panel
By a MetNews Staff Writer
A former Stanford University graduate student who was detained when she attempted to fly to her native country, then allowed to do so but prevented from returning, may sue the federal government for violation of her constitutional rights, the Ninth U.S. Circuit Court of Appeals held yesterday.
Reversing a contrary ruling by U.S. District Judge William Alsup of the Northern District of California, the panel reinstated Rahinah Ibrahim’s 42 U.S.C. Sec. 1983 action. Ibrahim, a citizen of Malaysia who studied at Stanford from 2001 to 2005, claims that by including her on the No-Fly List, and other terrorist watchlists, and not telling her why, or how she can clear her name, the government is depriving her of freedom of association, due process, and equal protection.
Ibrahim’s complaint says she is a Malaysian Muslim who was attempting to fly home from San Francisco, to represent Stanford at an academic conference, when she was detained in January 2005. After being handcuffed in front of her 14-year-old daughter and held for about two hours, she was released at the direction of the FBI, and allowed to fly the next day.
But when she attempted to return to the United States, she was told that her visa had been revoked, under a statute rendering known or suspected terrorists inadmissible. She was advised that she could apply for a new visa, but when she did so, her application was denied under the same statute.
Among the defendants named in Ibrahim’s complaint were the FBI’s Terrorist Screening Center, which is responsible for compiling the list of names ultimately placed on the No-Fly List, and the Transportation Security Administration, which implemented the No-Fly List with a “security directive” requiring airlines to check passengers’ identification against the list and setting forth the procedures to be followed if they find a passenger’s name on the list.
Her suit was initially dismissed by Alsup on the ground that the No-Fly List was an “order” of the TSA and thus non-reviewable by the district court, which grants the appellate courts exclusive jurisdiction to review the rulings of specified agencies.
But the Ninth Circuit, in a decision by a different panel than the one that issued yesterday’s ruling, held in 2008 that the underlying decision was by the TSC, not the TSA, so the district court was not deprived of jurisdiction, except to the extent that Ibrahim was challenging TSA policies.
She subsequently filed a separate action in the Ninth Circuit challenging the implementation of the No-Fly List by the TSA. That action is now pending before the D.C. Circuit, to which it was transferred because Ibrahim no longer lives in the United States.
On remand to the district court, Alsup ruled that the plaintiff lacked standing to sue for violation of constitutional rights because she is not a citizen of this country, is not physically present here, and lacks a “significant voluntary connection” to the United States.
But Judge William Fletcher, writing for the Ninth Circuit, said Ibrahim had satisfied the requirements to bring her suit.
“The Supreme Court has held in a series of cases that the border of the United States is not a clear line that separates aliens who may bring constitutional challenges from those who may not,” the judge wrote.
He distinguished United States v. Eisentrager, 339 U.S. 763 (1950), involving German nationals tried by a U.S. military tribunal and incarcerated in China. The Supreme Court held them to be without standing to challenge their trials and imprisonment.
Ibrahim, the judge noted, has not been charged with a crime.
“She is a citizen of a country with which we have never been at war,” the judge wrote. “She contends that the placement of her name on the government’s terrorist watchlists is a mistake. Her contention is not implausible, given the frequent mistakes the government has made in placing names on these lists. She has established a substantial voluntary connection with the United States through her Ph. D. studies at a distinguished American university, and she wishes to maintain that connection.”
Senior Judge Dorothy W. Nelson concurred.
U.S. District Judge Kevin T. Duffy, visiting from the Southern District of New York, dissented, arguing that because Ibrahim no longer has, and the State Department will not grant her, a visa—a denial that cannot be judicially reviewed—she no longer has a significant voluntary connection to this country.
The case is Ibrahim v. Department of Homeland Security, 10-15873.
Copyright 2012, Metropolitan News Company