D.C. No. 3:06-cv-00545-WHA Appeal from the United States District Court for the Northern District of California William H. Alsup, District Judge, Presiding
The opinion of the court was delivered by: W. Fletcher, Circuit Judge:
Argued and Submitted May 9, 2011-San Francisco, California
Before: Dorothy W. Nelson and William A. Fletcher, Circuit Judges, and Kevin Thomas Duffy, District Judge.*fn1
Opinion by Judge William A. Fletcher; Dissent by Judge Duffy
Plaintiff Rahinah Ibrahim is a citizen of Malaysia and mother of four children. She was legally in the United States from 2001 to 2005 as a Ph.D. student 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 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. We reverse and remand for further proceedings.
Ibrahim is Associate Professor and Deputy Dean of Research, Postgraduate Studies and International Affairs at the Faculty of Design and Architecture of the University Putra Malaysia in Serdang, Malaysia. She has a Ph.D. in Construction Engineering and Management from Stanford University in California, where she studied from 2001 to 2005 under a student visa.
This case has never gone beyond the complaint stage. For the narrative that follows, we rely on allegations in Ibrahim's complaint and on statements in her declaration in the district court, assuming those allegations and statements to be true for purposes of our review. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23 (2007).
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, David Nevins, discovered her name on the federal government's No-Fly List. Instead of issuing her a boarding pass, Nevins called the San Francisco police.
When San Francisco police officers arrived, they called the Transportation Security Operations Center,*fn2 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. 8 U.S.C. § 1182(a)(3)(B). 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. We take judicial notice that 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 Malay-sia'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. Ibrahim collaborates with Stanford Professors Raymond Levitt and Renate Fruchter, and has co-authored several papers with Professor Fruchter. Ibrahim has stated in an affidavit that she is "occasionally able to meet face-to-face with U.S. citizens outside the United States" but has "otherwise had to use video conferencing and email instead, both of which are poor substitutes for face-to-face contact." Selangor, a provincial government in Malaysia, also asked Ibrahim to act as its representative at a conference in San Francisco but she was unable to attend.
Ibrahim has close friends at Stanford whom she remains unable to visit. Her thesis advisor at Stanford, Professor Boyd Paulson, died in December 2005. Professor Paulson's widow asked Ibrahim to speak at his memorial service, but she was unable to attend. Ibrahim states that she would like to "finally . . . say goodbye to him at his grave."
B. The Government's Terrorist Watchlists
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. See, e.g., 6 U.S.C. §§ 122, 124h, 482, 485; Exec. Order No. 13388, 70 Fed. Reg. 62023 (Oct. 25, 2005). 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." See Homeland Security Presidential Directive/HSPD-6. Though administered by the FBI, TSC retains personnel from the Departments of State, Homeland Security, and Defense, and other federal agencies.*fn3
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.*fn4 The State Department uses a subset of the TSDB to screen visa applicants through the Consular Lookout and Support System.*fn5
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, as do some pri- vate sector entities and individuals.*fn6 As of January 2011, TSC had also agreed to share information with 22 foreign governments.*fn7
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.*fn8 As of 2007, the TSDB was increasing at a rate of 20,000 records per month.*fn9 TSC makes 400 to 1200 changes to the TSDB every day.*fn10 It is the "world's most comprehensive and widely shared database of terrorist identities."*fn11
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."*fn12 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.*fn13
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.*fn14
TSA maintains a list of approximately 30,000 individuals who are commonly confused with those on the No-Fly and Selectee Lists.*fn15 One major air carrier reported that it encountered 9,000 erroneous terrorist watchlist matches every day during April 2008.*fn16
Nomination and identification errors are so common that TSC organized a redress unit in 2007 to deal with complaints. The redress procedures have been opaque. A 2006 GAO report stated that an individual who submitted a query to TSC's redress unit received an initial response letter that "neither confirms nor denies the existence of any terrorist watch list records relating to the individual."*fn17 A 2009 internal DHS report stated, "With few exceptions, redress-seekers receive response letters that do not reveal the basis for their travel difficulties, the action the government took to address those difficulties, or other steps that they may take to help themselves in the future."*fn18
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.*fn19 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. Our review of redress results revealed that those claims are overstated. While TRIP offers ...