February 12, 2012 - Rahinah Ibrahim, a citizen of Malaysia and mother of four children was legally in the United States from 2001 to 2005 as a Ph.D. student in Construction Engineering and Management under a student visa 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 (D.C. No.3:06-cv-00545-WHA Ibrahim v. DHS) 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, in its view Ibrahim was not a citizen of the United States, hence did not have a right to file a suite.

Ibrahim appealed her case before the 9th U.S. Circuit Court of Appeals (Case #06-16727 Rahinah Ibrahim v. Department of Homeland Security) (see opening aruments). On Wednesday the court reversed and remands the case for further proceedings, allowing her to continue her lawsuit against the U.S. Department of Homeland Security and the FBI. 

Circuit Court of Appeals Judge William Fletcher wrote, "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." 

Marwa Elzankaly, an attorney for Ibrahim said, "We're very excited about this ruling. The 9th Circuit has confirmed Ms. Ibrahim's right to be heard and to challenge the placement of her name on any government watchlist." Below is a summary of the case history: 

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 discovered her name on the federal government’s No-Fly List. Instead of issuing her a boarding pass, the employee called the San Francisco police. 

When San Francisco police officers arrived, they called the Transportation Security Operations Center, a division of the federal Transportation Security Agency (“TSA”). A federal contractor employed by US 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.   

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. 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.  

Since the terrorist attacks of September 11, 2001, the federal government has assembled a vast, multi-agency, counterterrorism bureaucracy that tracks hundreds of thousands of individuals. At the heart of this bureaucracy is the Terrorist Screening Center (“TSC”). Established by the Attorney General in 2003 pursuant to a presidential directive, the mission of TSC is “to consolidate the Government’s approach to terrorism screening and provide for the appropriate and lawful use of Terrorist Information in screening processes.”

TSC manages the Terrorist Screening Database (“TSDB”), the federal government’s centralized watchlist of known and suspected terrorists. The National Counterterrorism Center nominates known and suspected international terrorists to the TSDB, while the FBI nominates known and suspected domestic terrorists. TSC distributes subsets of the TSDB to other federal agencies to help implement the government’s counterterrorism initiatives.

TSA uses two subsets of the TSDB, the No-Fly List and the Selectee List to screen airline passengers. Individuals on the No-Fly List are prohibited from boarding American carriers or any flight having virtually any contact with U.S territory or airspace. Individuals on the Selectee List are subject to enhanced security screening before boarding an airplane. The State Department uses a subset of the TSDB to screen visa applicants through the Consular Lookout and Support System. 

The evidence and procedures used to nominate individuals to the TSDB are kept secret from the general public, as are the names of those in the TSDB. However, thousands of front line law enforcement officers from federal, state, local, territorial, and tribal agencies have access to the TSDB 

Since its inception, the TSDB has grown by more than 700%, from about 158,000 records in June 2004 to over 1.1 million records in May 2009. In 2007, these records contained information on approximately 400,000 individuals. As of 2007, the TSDB was increasing at a rate of 20,000 records per month. TSC makes 400 to 1200 changes to the TSDB every day. It is the “world’s most comprehensive and widely shared database of terrorist identities.” 

In theory, only individuals who pose a threat to civil aviation are put on the No-Fly and Selectee Lists, but the Justice Department has criticized TSC for its “weak quality assurance process.” In July 2006 after the events that gave rise to this lawsuit there were 71,872 records in the No-Fly List. After an internal review, TSC downgraded 22,412 records from the No-Fly List to the Selectee List and deleted entirely an additional 5,086 records. By January 2007, the TSC had cut the No-Fly List by more than half, to 34,230 records. 

Tens of thousands of travelers have been misidentified because of misspellings and transcription errors in the nomination process, and because of computer algorithms that imperfectly match travelers against the names on the list. TSA maintains a list of approximately 30,000 individuals who are commonly confused with those on the No-Fly lists. One major air carrier reported that it encountered 9,000 erroneous terrorist watchlist matches every day during April 2008. 

When Ibrahim filed suit, TSA managed a Passenger Identity Verification program for travelers who believed that they were mistakenly put on the No-Fly or Selectee List. In place of that program, the Department of Homeland Security (“DHS”) now manages the Traveler Redress Inquiry Program (“TRIP”). A 2007 Department of Justice audit commended TSC for accurately resolving redress queries, but noted that 45% of the reviewed records contained an error. The 2009 DHS report was less charitable, concluding that the “TRIP website advises travelers that the program can assist them with resolving a range of travel difficulties which has been determined to be an overstatement.  

On January 27, 2006, Ibrahim filed suit against DHS, TSA, TSC, the FBI, the Federal Aviation Administration (“FAA”), and  individuals  associated  with  these  entities  (collectively, “the federal defendants”); the City and County of San Francisco, the San Francisco Police Department, the San Francisco Airport, the County of San Mateo, and individuals associated with these entities (collectively, “the city defendants”); and United Airlines, UAL corporation, and individuals associated with these entities (collectively, “the private defendants”).  

Ibrahim asserted claims and state-law tort claims arising out of her detention at the San Francisco airport, as well as several constitutional claims based on the inclusion of her name on government terrorist watchlists. The district court dismissed her claims against the federal defendants. The appeals court reversed that decision in part the district court’s dismissal of the federal defendants. The court held  that  § 46110(a) requires all challenges to TSA’s policies and procedures implementing the No-Fly and other lists to be filed directly in the court of appeals.  

After remand, Ibrahim filed a Second Amended Complaint (“SAC”). In Claim 13 of her SAC, Ibrahim asserted several causes of action against the remaining federal defendants. Ibrahim alleges in her claim that the inclusion of her name on the government’s terrorist watchlists violates her First Amendment right to freedom of association and her Fifth Amendment rights to due process and equal protection.  

She also alleges that the federal defendants violated the Administrative Procedure Act (“APA”), which was construe by the court as an allegation that the APA waives the sovereign immunity of the United States, thereby allowing her claims under the First and Fifth Amendments and authorizing remedies for those claims. Ibrahim asks for an injunction that would require the government to take her name off its terrorist watch lists, including the No-Fly List, or, in the alternative, to provide procedures under which she could challenge her inclusion on those lists. 

The federal defendants moved to dismiss her claim for lack of standing and for failure to state a claim upon which relief can be granted. The government contended that Ibrahim has no standing under Article III of the Constitution. The government contended, further, that Ibrahim has no right to assert claims under the First and Fifth Amendments because she is an alien who has voluntarily left the United States. 

The district court held that Ibrahim has standing. The district court speculated that Ibrahim’s inclusion in the No-Fly List might be a “monumental mistake,” but nonetheless dismissed the claim holding that Ibrahim was “an alien who voluntarily left the United States and thus left her constitutional rights at the water’s edge.”