Wilwal v. Nielsen

346 F.Supp.3d 1290

Abdisalam WILWAL, and Sagal Abdigani, Individually and on Behalf of Their Minor Children, M.O., N.W., A.W., and A.M., Plaintiffs,

v.Kirstjen NIELSEN, Secretary of the Department of Homeland Security; Kevin McAleenan, Acting Commissioner of U.S. Customs and Border Protection, in His Official Capacity; Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement, in His Official Capacity; Derek N. Benner, Acting Executive Associate Director of Homeland Security Investigations, U.S. Immigration and Customs Enforcement, in His Official Capacity; Jefferson B. Sessions, Attorney General of the United States, in His Official Capacity; Christopher A. Wray, Director of the Federal Bureau of Investigation, in His Official Capacity; Charles H. Kable, IV, Director of the Terrorist Screening Center, in His Official Capacity; and the United States of America, Defendants.

Civil No. 17-2835 (DWF/DTS)

United States District Court, D. Minnesota.

Signed September 27, 2018

Hugh Handeyside, Esq., and Hina Shamsi, Esq., American Civil Liberties Union Foundation; Teresa J. Nelson, Esq., John B. Gordon, Esq., and Ian Bratlie, Esq., American Civil Liberties Union Foundation of Minnesota; and Randall Tietjen, Esq., Amira A. ElShareif, Esq., and Sarah E. Friedricks, Esq., Robins Kaplan LLP, counsel for Plaintiffs.

Erica McDonald, United States Attorney, and Erin M. Secord, Assistant United States Attorney, United States Attorney's Office; and Chad A. Readler, Esq., John R. Tyler, Esq., Michael L. Drezner, Esq., James G. Touhey, Jr., Esq., Rupert Mitsch, Esq., and Paul D. Stern, Esq., United States Department of Justice, counsel for Defendants.

MEMORANDUM OPINION AND ORDER

DONOVAN W. FRANK, United States District Judge

INTRODUCTION

This lawsuit arises out of a family's detention at a United States-Canada border crossing. Plaintiffs Abdisalam Wilwal, Sagal Abdigani, and their four children ages 5, 6, 8, and 14 (collectively, "Plaintiffs") bring this lawsuit claiming their detention was unlawful and assert various constitutional, Administrative Procedure Act ("APA"), and Federal Tort Claims Act ("FTCA") claims against the Government. This matter is before the Court on the Government's motion to dismiss. (Doc. No. 37.) For the reasons discussed below, the Court grants the Government's motion to dismiss Mr. Wilwal's substantive due process claim. The Court otherwise denies the Government's motion.

BACKGROUND

Unless otherwise noted, the facts set forth are drawn from Plaintiffs' amended complaint (Doc. No. 25 ("Am. Compl.") ), and accepted as true for the purposes of considering the motion to dismiss. Plaintiffs are United States citizens residing in Eagan, Minnesota. (Am. Compl. ¶¶ 2, 26.) On March 30, 2015, Plaintiffs were returning to Minnesota from a trip to Regina, Saskatchewan. (Id. ¶¶ 26, 28.) At the checkpoint in Portal, North Dakota, U.S. Customs and Border Protection ("CBP") officers detained Plaintiffs for over ten hours because Mr. Wilwal's name appeared on a terrorism-related watchlist maintained by the Terrorist Screening Center ("TSC"). (Id. ¶¶ 34, 37, 52-84.)

I. Plaintiffs' Allegations

On March 27, 2015, Plaintiffs drove from their home in Eagan, Minnesota, to visit relatives in Regina, Saskatchewan. (Id. ¶ 26.) At the border crossing in Portal, North Dakota, Canadian border officers told Mr. Wilwal that their records indicated that Mr. Wilwal might face additional questioning when attempting to reenter the United States. (Id. ¶ 27.) When Plaintiffs returned around 6:00 a.m. on March 30, they presented a CBP officer with the family's U.S. passports and birth certificates. (Id. ¶¶ 28-29.) After a few minutes, CBP agents approached Plaintiffs' van with their guns drawn and directed at the van carrying the parents and four young children, and ordered Mr. Wilwal out of the van. (Id. ¶¶ 31-32.) The agents handcuffed Mr. Wilwal and escorted him into the station. (Id. ¶¶ 32-33.) While escorting Mr. Wilwal into the station, one of the CBP agents accused him of being involved in terrorism. (Id. ¶ 34.) Mr. Wilwal asked the agent why he made that accusation; the agent responded, "We have information." (Id. )

Inside the station, the agents took Mr. Wilwal into a room, sat him in a chair, and left him handcuffed. (Id. ¶ 35.) Around 10:30 a.m., and without any food or water, Mr. Wilwal passed out on the floor of the room where he was being detained. (Id. ¶ 52.) After paramedics evaluated Mr. Wilwal, the agents changed the position of the handcuffs so that Mr. Wilwal's arms were in front of his body. (Id. ¶ 53.) The agents also gave Mr. Wilwal water. (Id. )

Around 3:00 p.m., the agents informed Mr. Wilwal that HSI officers had arrived from Minot, North Dakota. (Id. ¶ 56.) Beginning around 4:00 p.m., the HSI officers questioned Mr. Wilwal for approximately 45 minutes. (Id. ¶ 57, 61.) The HSI officers denied Mr. Wilwal's requests for an interpreter and a lawyer. (Id. ¶ 57.) The HSI officers asked Mr. Wilwal if he is Muslim, whether he is Sunni or Shia, and whether he attends a mosque. (Id. ¶ 59.) Additionally, the HSI officers questioned Mr. Wilwal about Plaintiffs' trip to Canada. (Id. ¶ 60.) Around 4:40 p.m., after being detained over 10 hours, with no explanation, the HSI officers told the agents that they could remove Mr. Wilwal's handcuffs and that he could leave the station. (Id. ¶ 62.)

Ms. Abdigani and the four young children were also detained for over ten hours. (Id. ¶ 65.) While the agents escorted Mr. Wilwal into the station, they directed Ms. Abdigani to park the van outside the border station. (Id. ¶¶ 66-67.) The agents then told Ms. Abdigani to leave her cell phone in the van and directed Ms. Abdigani and the children into the station. (Id. ¶¶ 67-68.)

After approximately one hour, Ms. Abdigani asked an agent if she could retrieve her cell phone from the van and contact family or friends. (Id. ¶ 71.) The agent denied the request. (Id. ) Ms. Abdigani also asked if the children could go home to Eagan, either via her driving them or her brother-in-law coming to pick them up. (Id. ¶ 72.) The agent denied that request also, stating: "You're all detainees, including the children." (Id. )

Around 11:00 a.m., Ms. Abdigani used her 14-year-old son's, M.O., cell phone to call 911. (Id. ¶¶ 74-75.) M.O. had not been told to leave his cell phone in the van. (Id. ¶ 74.) Ms. Abdigani told the 911 dispatcher that she and her family were being held against their will at the border station and were afraid for their safety. (Id. ¶ 75.) One of the agents then took the cell phone, and after approximately ten minutes, convinced the 911 dispatcher to not send assistance. (Id. ) After the 911 call, the agents conducted pat-down searches of Ms. Abdigani and M.O. (Id. ¶¶ 76-79.) To search M.O., the agents took him into a separate room, patted him down, and then ordered him to take off his clothes for a strip search. (Id. ¶ 77.) M.O. refused to take off his clothes, and neither he nor Ms. Abdigani consented to the searches. (Id. ¶¶ 77-78.)

Apart from asking Ms. Abdigani to write something in Somali, the agents never questioned Ms. Abdigani and the children, nor gave them a reason for being detained. (Id. ¶¶ 69-70.) Plaintiffs were released and left the station just after 4:40 p.m. (Id. ¶ 84.)

On March 31, 2015, the same day that Plaintiffs arrived home, Mr. Wilwal and Ms. Abdigani went to the FBI and DHS offices to report what had happened to them at the border. (Id. ¶¶ 85-86.) An employee at the DHS office said she would get back to them with more information if possible. (Id. ¶ 86.) Two or three weeks later, an administrative staff member at the DHS office left Mr. Wilwal a voicemail stating that the incident at the border likely occurred because Mr. Wilwal's name appeared on a terrorist watchlist. (Id. ¶ 86.)

II. Statutory and Regulatory Framework

The Terrorist Screening Center ("TSC"), "a multi-agency center administered by the FBI," has the duty to manage and operate the Terrorist Screening Database (the "Watchlist"). See Terrorist Screening Center, https://www.fbi.gov/about/leadership-and-structure/national-security-branch/tsc (last visited September 25, 2018). "The watchlist is a single database that contains sensitive national security and law enforcement information concerning the identities of those who are known or reasonably suspected of being involved in terrorist activities." Id. "The TSC uses the watchlist to support front-line screening agencies in positively identifying known or suspected terrorists who are attempting to ... enter the country." Id. The procedure for submission of identity information for inclusion on the Watchlist is known as the "watchlist nomination process." Terrorist Screening Center, Frequently Asked Questions at 2 (last updated Jan. 2017) ("TSC FAQ"), https://www.fbi.gov/file-repository/terrorist-screening-center-frequently-asked-questions.pdf. Government agencies submit identity information for individuals who may qualify for inclusion and submit those nominations to the National Counterterrorism Center ("NCC"). Id. If the NCC finds the information credible and sufficient, then it passes the information to the TSC for final verification and entry into the Watchlist. Id.

Congress required the Transportation Security Administration ("TSA") to provide a redress system for individuals who have questions concerning, or want to appeal their alleged Watchlist status. Id. ; see also 49 U.S.C. § 44903(j)(2)(C)(iii)(I). Because of this mandate, DHS established and administers the Traveler Redress Inquiry Program ("DHS TRIP"), through which individuals can submit a redress inquiry. 49 C.F.R. § 1560.205(b). Upon receipt of a redress inquiry, TSA "will review all the documentation and information requested from the individual, correct any erroneous information, and provide the individual with a timely written response." 49 C.F.R. § 1560.205(d).

Mr. Wilwal and Ms. Abdigani submitted DHS TRIP redress inquiries, but...