Kariye v. Mayorkas

650 F.Supp.3d 865

Abdirahman Aden KARIYE, et al., Plaintiffs, v. Alejandro MAYORKAS, et al., Defendants.

Case No.: CV 22-01916-FWS-GJS

United States District Court, C.D. California

Signed October 12, 2022

Ashley M. Gorski, Pro Hac Vice, Sarah M. Taitz, Pro Hac Vice, Scarlet Kim, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, Mohammad K. Tajsar, ACLU Foundation of Southern California, Los Angeles, CA, Brett Hom De Jarnette, Cooley LLP, Palo Alto, CA, Daniel Mach, Pro Hac Vice, Heather L. Weaver, ACLU Foundation, Washington, DC, Elizabeth Sanchez Santiago, Hannah E. Pollack, John H. Hemann, Cooley LLP, San Francisco, CA, Teresa J. Nelson, Pro Hac Vice, ACLU of Minnesota, Minneapolis, MN, for Plaintiffs.

Leslie C. Vigen, Pro Hac Vice, Laurel Lum, Samuel Rebo, U.S. Department of Justice, Civil Division, Washington, DC, for Defendants Alejandro Mayorkas, Tae D. Johnson, Steve K. Francis, Troy Miller.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' COMPLAINT [40]

Fred W. Slaughter, UNITED STATES DISTRICT JUDGE

Before the court is Defendants Alejandro Mayorkas, Secretary of the Department of Homeland Security, in his official capacity; Chris Magnus, Commissioner of U.S. Customs and Border Protection, in his official capacity; Tae D. Johnson, Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity; and Steve K. Francis', Acting Executive Associate Director, Homeland Security Investigations, in his official capacity (collectively, "Defendants") Motion to Dismiss ("Motion" or "Mot.") Plaintiffs Abdirahman Aden Kariye, Mohamad Mouslli, and Hameem Shah's (collectively, "Plaintiffs") Complaint. (Dkt. 40.) Plaintiffs' Complaint ("Compl.") seeks injunctive relief, declaratory relief, and attorneys' fees and costs for violations of the First Amendment, Fifth Amendment, and the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. §§ 2000bb et seq. (Dkt. 1.)

The court held a hearing on the Motion on July 28, 2022. (Dkt. 49.) Present at the hearing were Plaintiffs' counsel and Defendants' counsel. (Id.) At the conclusion of the hearing on the Motion, the court took the matter under submission. (Id.) Based on the state of the record, as applied to the applicable law, the court GRANTS the Motion.

I. Background

A. Summary of Complaint Allegations

Plaintiff Abdirahman Aden Kariye is a U.S. citizen who lives in Bloomington, Minnesota. (Compl. ¶ 8.) Plaintiff Kariye is Muslim and serves as an imam at a local mosque. (Id.) Plaintiff Mohamad Mouslli is a U.S. citizen who lives in Gilbert, Arizona. (Id. ¶ 9.) Plaintiff Mouslli is Muslim and works in commercial real estate. (Id.) Plaintiff Hameem Shah is a U.S. citizen who lives in Plano, Texas. (Id. ¶ 10.) Plaintiff Shah is Muslim and works in financial services. (Id.)

Defendants are the heads of the U.S. Department of Homeland Security ("DHS") and its agencies: U.S. Customs and Border Protection ("CBP") and U.S. Immigration and Customs Enforcement ("ICE"), of which Homeland Security Investigations ("HSI") is a subcomponent. (Id. ¶ 11.) Defendant Alejandro Mayorkas is the Secretary of DHS and has authority over all DHS policies and practices, including those challenged in this lawsuit. (Id. ¶ 12.) Plaintiffs name Defendant Mayorkas in his official capacity. (Id.) Defendant Chris Magnus is the Commissioner of CBP and has authority over all CBP policies and practices, including those challenged in this lawsuit. (Id. ¶ 13.) Plaintiffs name Defendant Magnus in his official capacity. (Id.) Defendant Tae Johnson is Acting Director of ICE and has authority over all ICE policies and practices, including those challenged in this lawsuit. (Id. ¶ 14.) Plaintiffs name Defendant Johnson in his official capacity. (Id.) Defendant Steve K. Francis is the Acting Executive Associate Director of HSI and has authority over all HSI policies and practices, including those challenged in this lawsuit. (Id. ¶ 15.) Plaintiffs name Defendant Francis in his official capacity. (Id.)

Plaintiffs allege at border crossings and international airports in the United States, Defendants' border officers frequently subject travelers who are Muslim, or whom they perceive to be Muslim, to questioning about their religion. (Id. ¶ 16.) In May 2011, after the American Civil Liberties Union ("ACLU") and other organizations submitted complaints to DHS describing border questioning of Muslim Americans about their religious beliefs and practices, the DHS Office for Civil Rights and Civil Liberties disclosed that it had opened an investigation into CBP questioning "of U.S. citizens and legal residents who are Muslim, or appear to be Muslim, about their religious and political beliefs, associations, and religious practices and charitable activities protected by the First Amendment and Federal law." (Id. ¶ 17.) In a letter to the ACLU dated May 3, 2011, the DHS Office for Civil Rights and Civil Liberties stated that it had received "a number of complaints like yours, alleging that U.S. Customs and Border Protection (CBP) officers have engaged in inappropriate questioning about religious affiliation and practices during border screening." (Id.)

The DHS Office for Civil Rights and Civil Liberties issued a memorandum on May 3, 2011, to the CBP Commissioner stating that it had received the following:

[N]umerous accounts from American citizens, legal permanent residents, and visitors who are Arab and/or Muslim, alleging that officials from U.S. Customs and Border Protection (CBP) repeatedly question them and other members of their communities about their religious practices or other First Amendment protected activities, in violation of their civil rights or civil liberties.

(Id. ¶ 18.)

The May 3, 2011, Memorandum included descriptions of border officers' questioning of Muslims about their religious beliefs and practices at various ports of entry across the United States. (Id. ¶ 19.) In July 2012, the DHS Office for Civil Rights and Civil Liberties informed the ACLU and other organizations that it had suspended its investigation because individuals had filed a lawsuit challenging the practice, and that litigation is still pending. (Id. ¶ 20.) Plaintiffs allege, on information and belief, the DHS Office for Civil Rights and Civil Liberties never resumed its investigation or issued findings about whether border questioning about religious beliefs and practices complies with federal law. (Id. ¶ 21.)

Plaintiffs allege Defendants' written policies permit border officers to question Americans about their religious beliefs, practices, and associations. (Id. ¶ 23.) ICE requires officers who work at ports of entry to carry a sample questionnaire to guide their interrogations of travelers, which includes questions about a traveler's religious beliefs, practices, and associations. (Id.) CBP has a policy that allows it to collect and maintain information about an individual's religious beliefs, practices, and associations in numerous circumstances. (Id.) On information and belief, CBP views the collection and retention of Plaintiffs' responses to the religious questioning described herein as authorized by its policy. (Id.) Defendants have a policy and/or practice of intentionally targeting selected Muslims (or individuals perceived to be Muslim) for religious questioning. (Id. ¶ 24.)

Plaintiffs allege that while Defendants' border officers routinely and intentionally single out Muslim Americans to demand answers to religious questions, travelers perceived as practicing faiths other than Islam are not routinely subjected to similarly intrusive questioning about their religious beliefs, practices, and associations. (Id.) The religious questioning of Muslims typically takes place in the context of "secondary inspection," a procedure by which CBP detains, questions, and searches certain travelers before they are permitted to enter the country. (Id. ¶ 25.)

Plaintiffs allege the secondary inspection environment is coercive because of the following elements present during the inspection: (1) border officers carry weapons, typically identify themselves as border officers or wear government uniforms, and command travelers to enter and remain in the secondary inspection areas; (2) travelers are not free to leave those areas until officers give them permission; (3) secondary inspection areas are separated from the public areas of airports and ports of entry; (4) border officers typically take possession of travelers' passports, routinely conduct physical searches and/or searches of travelers' belongings, including their electronic devices, and use the nature of the secondary inspection environment to compel Muslim American travelers to answer questions about their religious beliefs, practices, and associations. (Id. ¶ 26.) Plaintiffs allege Muslim American travelers have no meaningful choice but to disclose their First Amendment-protected beliefs and activity in response to border officers' inquiries. (Id. ¶ 27.)

CBP officers are required to create a record of every secondary inspection at an airport or land crossing. (Id. ¶ 28.) CBP officers routinely document travelers' responses to questions asked during secondary inspections, including Muslim Americans' responses to questions about their religious beliefs, practices, and associations. (Id.) When HSI agents are involved in or otherwise present during secondary inspection, they also routinely create and maintain records of the secondary inspection. (Id.) Border officers input the records of secondary inspections into DHS databases, including a DHS database called TECS, which functions as a repository for the sharing of information among tens of thousands of federal, state, local, tribal, and foreign law enforcement, counterterrorism, and border security agencies. (Id. ¶ 29.) TECS users include personnel from various federal agencies; TECS data is also accessible to officers from over 45,000 state and local police departments and retained for up...