Amiri v. Nielsen

328 F.Supp.3d 761

Loabat AMIRI, Mohammed Amin Latif, Farbod Latif, Plaintiffs,

v.Kirstjen NIELSEN, Secretary, U.S. Department of Homeland Security, in her official capacity, et al., Defendants.

Case No. 17-cv-12188

United States District Court, E.D. Michigan, Northern Division.

Signed July 9, 2018

Caridad Pastor Cardinale, Pastor Assoc., Troy, MI, for Plaintiffs.

Aaron S. Goldsmith, Department of Justice, Washington, DC, for Defendants.

ORDER GRANTING MOTION TO DISMISS AND DISMISSING AMENDED COMPLAINT

THOMAS L. LUDINGTON, United States District Judge

On October 5, 2017, Plaintiffs Loabat Amiri (Amiri), her husband Mohamed Amin Latif (Latif), and their son Farbod Latif (Farbod), filed an amended complaint challenging the denial of Latif's visa, and challenging Amiri and Latif's placement on a terrorist watch list. ECF No. 1. The amended complaint contains ten counts, alleging violations of the Immigration and Nationality Act of 1965 (INA), the Administrative Procedure Act (APA), and various constitutional provisions including Article 1 section 9 (Bill of Attainder) as well as amendments 1 (free exercise), 5 (equal protection, due process) and 6 (confrontation clause). The amended complaint names 9 official capacity defendants who are the directors of various executive departments and agencies including the Department of Homeland Security (DHS), the Department of State (DOS), Customs and Border Protection (CBP), Federal Bureau of Investigation (FBI), National Security Agency (NSA), National Counterterrorist Center (NCTC), Office of the Director of National Intelligence (ODNI), and the Terrorist Screening Center (TSC). The amended complaint also names unidentified agents of the FBI, TSC, and CBP. Defendants moved to dismiss the amended complaint on October 19, 2017. ECF No. 20.¹

On January 30, 2018 the Court granted Defendants' motion to dismiss in part. ECF No. 35. Pursuant to the doctrine of consular non-reviewability (the decisions of the Executive Branch in reviewing visa applications are generally not subject to judicial review), the Court dismissed all aspects of the amended complaint that challenged the inadmissibility determination and denial of Latif's visa. The Court also dismissed counts 1, 2, 5, 6, 7, and 9 in their entirety for failure to state a claim upon which relief can be granted under Rule 12(b)(6). Fed. R. Civ. P. 12(b)(6).

Because the parties had not briefed several outstanding issues, the Court directed supplemental briefing to address the following: 1) whether Plaintiffs have standing to challenge Amiri and Latif's alleged inclusion on the TECS database and the TSDB and to seek an explanation for the designation, 2) whether Plaintiff Latif, as an unadmitted non-resident alien, has a right to assert a constitutional or statutory challenge to his alleged inclusion on the TECS database and TSDB and seek an explanation for the designation, 3) whether Plaintiffs have stated a claim for relief under counts 3, 4, 8 and 10, and 4) whether Plaintiffs were required to exhaust the administrative remedies furnished by the DHS Traveler Redress Inquiry Program (TRIP) prior to initiating this case. Because Plaintiffs do not have standing, this opinion will primarily address the first issue. To the extent Plaintiff Latif might have standing if he pursued different relief, the exhaustion doctrine would apply. Thus, the exhaustion doctrine will be addressed briefly as well.

I.

A.

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal for lack of subject matter jurisdiction. Article III of the United States Constitution prescribes that federal courts may exercise jurisdiction only where an actual "case or controversy" exists. See U.S. Const. art. III, § 2. "Courts have explained the case or controversy requirement through a series of justiciability doctrines, including, perhaps the most important, that a litigant must have standing to invoke the jurisdiction of the federal courts." Parsons v. U.S. Dep't of Justice , 801 F.3d 701, 709–10 (6th Cir. 2015) (quotations omitted).

"The irreducible constitutional minimum of standing contains three elements." Lujan v. Defenders of Wildlife , 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First, Plaintiff must have suffered an injury in fact—an "invasion of a legally protected interest" which is "concrete and particularized" and not "conjectural or hypothetical." Id. at 561, 112 S.Ct. 2130. Second, the injury must be fairly traceable to the conduct complained of. Id. Third, "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id.

"The standing inquiry is particularly rigorous when reaching the merits of the dispute ‘would force [the Court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.’ " Parsons , 801 F.3d at 710 (quoting Clapper v. Amnesty Int'l USA , 568 U.S. 398, 408, 133 S.Ct. 1138, 185 L.Ed.2d 264, (2013) ). The party invoking federal jurisdiction bears the burden of establishing the standing elements. Lujan , 504 U.S. at 561, 112 S.Ct. 2130.

B.

The Ninth Circuit has addressed the question of whether an alien has standing to challenge her inclusion on the No-Fly list where her visa application was also denied. Ibrahim v. Dep't of Homeland Sec. , 669 F.3d 983 (9th Cir. 2012). In Ibrahim , the plaintiff was an alien who was in the United States on a student visa when she was detained and prevented from boarding a plane at the San Francisco airport. Id. She filed suit against numerous federal agencies seeking a permanent injunction directing the government to remove her name from the No-Fly list. Id. In addressing whether she had standing to challenge her inclusion on the list, the court noted that "the government mischaracterizes Ibrahim's injury by focusing solely on her inability to return to the United States." Id. at 993. The court further explained that Ibrahim suffered distinct injuries due to her presence on the No-Fly list: "The no Fly-List prevents her from boarding any U.S. carrier whether or not a flight departs from or lands in the United States. It also prevents her from flying over U.S. airspace. These injuries are unrelated to her lack of a visa." Id.

The court also noted that:

Even if Ibrahim's injury were limited to her inability to enter the United States, she would still have standing. Ibrahim does not challenge the revocation of her visa, as decisions of consular officers to deny a visa are immune from judicial review. But it is a reasonable inference that removal of her name from government watchlists would make a grant of a visa more likely. If Ibrahim's name were removed from the TSDB, and thereby removed from the Consular Lookout and Support System, the State Department would be likely to grant her a visa, given that it has relied on her alleged connection to terrorism as the basis for revoking her visa and denying her application for a new one. Though Ibrahim's future ability to obtain a visa is uncertain and we would be powerless to review a denial, plaintiff need not demonstrate that there is a guarantee that their injuries will be redressed by a favorable decision ... Plaintiffs must show only that a favorable decision is likely to redress their injuries, not that a favorable decision will inevitably redress their injuries ... As the district court correctly observed, while obtaining a visa may stand as a potential obstacle to her entry into the United states, it does not completely foreclose redressibility. Ibrahim is not required to solve all roadblocks simultaneously and is entitled to tackle one roadblock at a time.

Id. (internal quotations omitted) (emphasis in original).

More recently, the Sixth Circuit has addressed the issue of whether an individual has standing to challenge his or her designation on a terrorist watchlist. In Shearson , the United States Customs and Border Protection (CBP) detained the plaintiff, a U.S. Citizen, and her daughter as they drove into the U.S. from Canada. Shearson v. Holder , 725 F.3d 588, 589 (6th Cir. 2013). The vehicle was searched and the plaintiff and her daughter were ultimately allowed to enter the U.S. The plaintiff filed a Freedom of Information Act (FOIA) request for documents related to her detention, and she ultimately obtained documents revealing that CBP detained and searched her because "when Customs entered her name into its system, her name returned ‘an Armed and Dangerous’ designation in the Customs' terrorist database." Id. at 590. The plaintiff sought prospective declaratory and injunctive relief claiming that her inclusion on a terrorist watchlist violated the Procedural Due Process guarantees of the Fifth Amendment. The plaintiff argued "not only that the government wrongly detained her in 2006, but also that, by remaining on the list, the government is "constrain[ing] her right to travel freely internationally, to be treated like others situated similarly to her, and has subjected her to the stigma that attends placement on a government watchlist." " Id. at 593. The court concluded that "Shearson's past detention, in conjunction with the presumption that she remains on terrorist watchlists, makes it likely that she is ‘realistically threatened with future injury.’ " Id. (quoting Ibrahim v. Dep't of Homeland Sec. , 538 F.3d 1250, 1256 n. 9 (9th Cir. 2008).). The Court ultimately held, however, that the plaintiff failed to exhaust administrative remedies by failing to avail herself of DHS's Traveler Redress Inquiry Program (TRIP) ).

II.

In their supplemental brief, Defendants argue that Plaintiffs do not have standing to challenge their alleged inclusion on the TECS database and the TSDB and to seek an explanation for the designation because Plaintiffs allege no injury independent from the denial of Latif's visa. Def. Supp. Br. at 7-13, ECF No. 36. For these same reasons, Defendants argue that Plaintiffs have failed to state a claim because they ...