Ibrahim v. Department of Homeland Security

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAHINAH IBRAHIM, an individual, 

Plaintiff-Appellant,

v.

DEPARTMENT OF HOMELAND

SECURITY; MICHAEL CHERTOFF, in

his official capacity as the former

Secretary of the Department of

Homeland Security; TOM RIDGE, in

his official capacity as the former

Secretary of the Department of

Homeland Security; TERRORIST

SCREENING CENTER; DONNA No. 10-15873

BUCELLA, in her official capacity

D.C. No.

as former Director of the Terrorist

Screening Center; FEDERAL BUREAU  3:06-cv-00545-

OF INVESTIGATION; ROBERT S.

WHA

MUELLER, III, in his official OPINION

capacity as Director of the Federal

Bureau of Investigation; JANET

NAPOLITANO, in her official

capacity as Secretary of the

Department of Homeland security;

ERIC H. HOLDER Jr., Attorney

General, in his official capacity as

Attorney General; ARTHUR M.

CUMMINGS, II, in his official

capacity as Executive Assistant

Director of the FBI’s National

Security Branch; NATIONAL



1291

1292 IBRAHIM v. DHS

COUNTERTERRORISM CENTER; 

MICHAEL E. LEITER, in his official

capacity as Director of the

National Counterterrorism Center;

DEPARTMENT OF STATE; HILARY

CLINTON, in her official capacity as

Secretary of State; JOHN

BONDANELLA, an individual; US

INVESTIGATIONS SERVICES, INC., a 

Virginia corporation; CITY AND

COUNTY OF SAN FRANCISCO; SAN

FRANCISCO AIRPORT; SAN FRANCISCO

POLICE DEPARTMENT; RICHARD

PATE, an individual; JOHN

CUNNINGHAM, an individual;

ELIZABETH MARON, an individual,

Defendants-Appellees.



Appeal from the United States District Court

for the Northern District of California

William H. Alsup, District Judge, Presiding

Argued and Submitted

May 9, 2011—San Francisco, California

Filed February 8, 2012

Before: Dorothy W. Nelson and William A. Fletcher,

Circuit Judges, and Kevin Thomas Duffy, District Judge.*

Opinion by Judge William A. Fletcher;

Dissent by Judge Duffy

*The Honorable Kevin Thomas Duffy, District Judge for the U.S. Dis-

trict Court for Southern New York, New York, sitting by designation.

1296 IBRAHIM v. DHS

COUNSEL

James McManis, Marwa Elzankaly, Christine Peek, Elizabeth

Pipkin, McMANIS FAULKNER, San Jose, California, for the

appellant.

Paul G. Freeborne, Douglas Neal Letter, Joshua P. Waldman,

US DEPARTMENT OF JUSTICE, Washington, D.C.; Sharon

Douglass Mayo, ARNOLD & PORTER, San Francisco, Cali-

fornia; and Ronald P. Flynn, Peter Julian Keith, SAN FRAN-

CISCO CITY ATTORNEY’S OFFICE, San Francisco,

California, for the appellees.

Veena Dubal, ASIAN LAW CAUCUS, San Francisco, Cali-

fornia, and Maria V. Morris, Sanford Jay Rosen, ROSEN

BIEN & GALVAN, LLP, San Francisco, California, for the

amici curiae.

OPINION

W. FLETCHER, Circuit Judge:

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 v. DHS 1297

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.

I. Factual Background

A. Ibrahim’s Departure

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 Construc-

tion 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.

1298 IBRAHIM v. DHS

When San Francisco police officers arrived, they called the

Transportation Security Operations Center,1 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 sched-

uled to leave, San Francisco police officers handcuffed Ibra-

him. 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 nonethe-

less 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.

1

Subsequently renamed “The Freedom Center.” Transportation Security

Administration, Transportation Security Operations Center Re-Named

Freedom Center, at http://www.tsa.gov/press/speeches/freedom_

dedication.shtm (last visited Aug. 30, 2011).

IBRAHIM v. DHS 1299

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 reason-

able 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 appli-

cation on December 14, 2009, during the pendency of this

appeal. In a form letter with a series of boxes, a consular offi-

cer 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.

1300 IBRAHIM v. DHS

Ibrahim’s inability to return to the United States has limited

her academic and professional activities. She currently partici-

pates 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 Cen-

ter for Integrated Facility Engineering. Although Ibrahim was

her school’s representative to Stanford, she was unable to par-

ticipate 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 fed-

eral government has assembled a vast, multi-agency, coun-

terterrorism 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 pursu-

ant to a presidential directive, the mission of TSC is “to con-

solidate the Government’s approach to terrorism screening

IBRAHIM v. DHS 1301

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.2

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 domes-

tic terrorists. TSC distributes subsets of the TSDB to other

federal agencies to help implement the government’s coun-

terterrorism initiatives. TSA uses two subsets of the TSDB —

the No-Fly List and the Selectee List — to screen airline pas-

sengers. 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.3 The State Department uses a

subset of the TSDB to screen visa applicants through the Con-

sular Lookout and Support System.4

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-

2

Five Years After the Intelligence Reform and Terrorism Prevention

Act: Stopping Terrorist Travel: Hearing Before the S. Comm. on Home-

land Sec. and Governmental Affairs, 111th Cong. 1-2 (Dec. 9, 2009)

(Statement of Timothy J. Healy, Director, Terrorist Screening Center)

[hereinafter “Healy Statement”].

3

U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-08-110, TERRORIST WATCHLIST

SCREENING: OPPORTUNITIES EXIST TO ENHANCE MANAGEMENT OVERSIGHT,

REDUCE VULNERABILITIES IN AGENCY SCREENING PROCESSES, AND EXPAND USE

OF THE LIST 30 (2007) [hereinafter “2007 GAO Report”].

4

Id. at 30.

1302 IBRAHIM v. DHS

vate sector entities and individuals.5 As of January 2011, TSC

had also agreed to share information with 22 foreign govern-

ments.6

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.7 As of

2007, the TSDB was increasing at a rate of 20,000 records per

month.8 TSC makes 400 to 1200 changes to the TSDB every

day.9 It is the “world’s most comprehensive and widely shared

database of terrorist identities.”10

In theory, only individuals who pose a threat to civil avia-

tion are put on the No-Fly and Selectee Lists, but the Justice

Department has criticized TSC for its “weak quality assurance

process.”11 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

5

U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-10-401T, HOMELAND SECUR-

ITY: BETTER USE OF TERRORIST WATCHLIST INFORMATION AND IMPROVEMENTS

IN DEPLOYMENT OF PASSENGER SCREENING CHECKPOINT TECHNOLOGIES COULD

FURTHER STRENGTHEN SECURITY 2 (2010) [hereinafter “2010 GAO State-

ment”].

6

U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-11-335, VISA WAIVER PRO-

GRAM: DHS HAS IMPLEMENTED THE ELECTRONIC SYSTEM FOR TRAVEL AUTHO-

RIZATION, BUT FURTHER STEPS NEEDED TO ADDRESS POTENTIAL PROGRAM

RISKS 21 n.24 (2011) [hereinafter “2011 GAO Report”].

7

2007 GAO REPORT at 8; U.S. DEP’T OF JUSTICE, OFFICE OF THE INSPECTOR

GENERAL, AUDIT DIVISION, AUDIT REPORT 09-25, THE FEDERAL BUREAU OF

INVESTIGATION’S TERRORIST WATCHLIST NOMINATION PRACTICES i-ii & n.4

(2009) [hereinafter “2009 DOJ Report”].

8

U.S. DEP’T OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, AUDIT

DIVISION, AUDIT REPORT 07-41, FOLLOW-UP AUDIT OF THE TERRORIST

SCREENING CENTER iii (2007) (hereinafter “2007 DOJ Report”).

9

Healy Statement at 2.

10

Id. at 1.

11

2007 DOJ REPORT at iii.

IBRAHIM v. DHS 1303

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.12

Tens of thousands of travelers have been misidentified

because of misspellings and transcription errors in the nomi-

nation process, and because of computer algorithms that

imperfectly match travelers against the names on the list.13

TSA maintains a list of approximately 30,000 individuals who

are commonly confused with those on the No-Fly and

Selectee Lists.14 One major air carrier reported that it encoun-

tered 9,000 erroneous terrorist watchlist matches every day

during April 2008.15

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 “nei-

ther confirms nor denies the existence of any terrorist watch

list records relating to the individual.”16 A 2009 internal DHS

report stated, “With few exceptions, redress-seekers receive

response letters that do not reveal the basis for their travel dif-

ficulties, the action the government took to address those dif-

ficulties, or other steps that they may take to help themselves

in the future.”17

12

Id. at 32-33 & n.49.

13

U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-06-1031, TERRORIST WATCH

LIST SCREENING, EFFORTS TO HELP REDUCE ADVERSE EFFECTS ON THE PUBLIC

2, 4-6, 19-20 (2006) [hereinafter “2006 GAO Report”].

14

Id. at 34.

15

DEP’T OF HOMELAND SEC., OFFICE OF INSPECTOR GENERAL, OIG-09-103,

EFFECTIVENESS OF THE DEPARTMENT OF HOMELAND SECURITY TRAVELER

REDRESS INQUIRY PROGRAM (REDACTED) 37 (2009) [hereinafter “2009 DHS

Report”].

16

See 2006 GAO Report at 31.

17

2009 DHS Report at 89.

1304 IBRAHIM v. DHS

When Ibrahim filed suit, TSA managed a Passenger Iden-

tity 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.18 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 effective solutions to some traveler issues,

it does not address other difficulties effectively, including the

most common — watch list misidentifications in aviation

security settings.”19

II. Procedural Background

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 Fran-

cisco, 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 § 1983 claims and state-law tort claims aris-

ing 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 under 49

U.S.C. § 46110(a), which vests exclusive original jurisdiction

18

2007 DOJ Report at xix.

19

2009 DHS Report at 33-34.

IBRAHIM v. DHS 1305

in the courts of appeals over suits challenging security orders

issued by TSA.

A panel of this court reversed in part the district court’s dis-

missal of the federal defendants. We held that § 46110(a)

does not bar district court jurisdiction over Ibrahim’s chal-

lenges to her placement on the government terrorist watch-

lists, including the No-Fly List, because the lists are managed

by TSC rather than TSA. Ibrahim v. Dep’t of Homeland Sec.,

538 F.3d 1250, 1254-56 (9th Cir. 2008). We held, however,

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. Id. at 1256-57.20

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 Claim 13 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 Adminis-

trative Procedure Act (“APA”), which we construe as an alle-

gation 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.

See Ibrahim, 538 F.3d at 1254. Ibrahim asks for an injunction

that would require the government to take her name off its ter-

rorist watch lists, including the No-Fly List, or, in the alterna-

tive, to provide procedures under which she could challenge

her inclusion on those lists.

20

Ibrahim had also filed a petition directly with the Ninth Circuit pursu-

ant to § 46110(a). Because Ibrahim no longer resides in California, the

panel transferred that petition to the D.C. Circuit. Ibrahim, 538 F.3d at

1253 n.2. Proceedings there are being held in abeyance pending resolution

of this appeal. Id.

1306 IBRAHIM v. DHS

The federal defendants moved to dismiss Claim 13 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 govern-

ment 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 dis-

trict court speculated that Ibrahim’s inclusion in the No-Fly

List might be a “monumental mistake,” but nonetheless dis-

missed Claim 13, holding that Ibrahim was “an alien who vol-

untarily left the United States and thus left her constitutional

rights at the water’s edge.”

Ibrahim has settled her claims against the non-federal

defendants. She appeals the dismissal of her Claim 13 against

the federal defendants. She also appeals discovery rulings.

III. Standard of Review

We review de novo a district court’s dismissal of a com-

plaint under Federal Rule of Civil Procedure 12(b)(6) for fail-

ure to state a claim. Alonzo v. ACF Prop. Mgmt., Inc., 643

F.2d 578, 579 (9th Cir. 1981). A complaint must state a claim

for relief that is “plausible on its face.” Ashcroft v. Iqbal, 129

S. Ct. 1937, 1949 (2009). The facts in the complaint are liber-

ally construed in the plaintiff’s favor and are generally

accepted as true. Id. The complaint, however, must allege

“more than a sheer possibility that a defendant has acted

unlawfully.” Id. We review discovery orders for abuse of dis-

cretion. Laub v. US Dep’t of Interior, 342 F.3d 1080, 1084

(9th Cir. 2003).

IV. Discussion

A. Standing

“To satisfy Article III’s standing requirements, a plaintiff

must show (1) she has suffered an ‘injury in fact’ that is (a)

IBRAHIM v. DHS 1307

concrete and particularized and (b) actual or imminent, not

conjectural or hypothetical; (2) the injury is fairly traceable to

the challenged action of the defendant; and (3) it is likely, as

opposed to merely speculative, that the injury will be

redressed by a favorable decision.” Berhardt v. Cnty. of Los

Angeles, 279 F.3d 862, 868-69 (9th Cir. 2002) (quoting

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

Inc., 528 U.S. 167, 180-81 (2000)). A plaintiff has the burden

of showing that she has standing. See Takhar v. Kessler, 76

F.3d 995, 1000 (9th Cir. 1996) (quoting Warth v. Seldin, 422

U.S. 490, 501 (1975)).

[1] Ibrahim seeks only prospective relief against the fed-

eral defendants. To establish standing under Article III, she

“must demonstrate that [s]he is realistically threatened by a

repetition of the violation,” Armstrong v. Davis, 275 F.3d 849,

860-61 (9th Cir. 2001) (internal quotation marks, alterations,

and emphasis omitted), abrogated on other grounds by John-

son v. California, 43 U.S. 499, 504-05 (2005), or show a cred-

ible threat of future injury, City of Los Angeles v. Lyons, 461

U.S. 95, 106 (1983).

[2] The government makes three standing arguments under

Article III. First, it argues that Ibrahim has failed to allege that

she is still on a government watchlist. The government refuses

to confirm or deny whether Ibrahim is on a watchlist, but it

contends that her SAC compels the conclusion that she is not

now on the No-Fly List, given that she was allowed to fly to

Malaysia the day after she was detained. The government

ascribes the boarding denial in Malaysia to Ibrahim’s lack of

a visa. Second, the government argues that a favorable judi-

cial decision will not redress Ibrahim’s injury. The govern-

ment notes that the revocation of Ibrahim’s student visa and

her inability to obtain a new one independently bars Ibrahim

from entering the United States, and that consular decisions

denying visas are immune from judicial review. Third, the

government argues that Ibrahim’s injury is hypothetical

because she has no immediate plans to travel.

1308 IBRAHIM v. DHS

[3] The government’s first argument is easily answered.

The reasonable inference to draw from Ibrahim’s complaint is

that she is on one or more government watchlists. When she

flew from San Francisco to Malaysia, she was subject to

enhanced searches at the San Francisco Airport and all subse-

quent stopovers. In general, only individuals who are on the

government’s Selectee List are subject to such searches. In

Malaysia, a ticketing agent told Ibrahim that a note by her

name instructed airport personnel to have her arrested.

Would-be travelers to the United States are not typically sub-

ject to arrest before boarding merely for lacking a proper visa.

When the State Department revoked Ibrahim’s student visa, it

cited INA § 212(a)(3)(B), which bars entry of any persons

known or suspected to be connected to terrorism. When Ibra-

him applied for a new visa, the State Department denied her

application for the same reason. The State Department

reviews the Consular Lookout and Support System — a sub-

set of the TSDB — to make visa determinations.

The government’s second argument, that a favorable deci-

sion will not redress her injury, is also unpersuasive. The gov-

ernment mischaracterizes Ibrahim’s injury by focusing solely

on her inability to return to the United States. 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 pre-

vents her from flying over U.S. airspace. These are injuries

unrelated to her lack of a visa. Further, TSC shares the TSDB

with 22 foreign governments. We can reasonably infer that

Ibrahim will suffer delays (or worse) when traveling abroad,

even on foreign carriers, resulting from the presence of her

name on the No-Fly List.

[4] 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. See Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th

Cir. 2008). But it is a reasonable inference that removal of her

IBRAHIM v. DHS 1309

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 more likely

to grant her a visa, given that it has relied on her alleged con-

nection 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, “plaintiffs need not demonstrate

that there is a ‘guarantee’ that their injuries will be redressed

by a favorable decision . . . [P]laintiffs must show only that

a favorable decision is likely to redress [their injuries], not

that a favorable decision will inevitably redress [their inju-

ries].” Wilbur v. Locke, 423 F.3d 1101, 1108 (9th Cir. 2005)

(internal quotations omitted, emphasis and alterations in origi-

nal) (quoting Graham v. FEMA, 149 F.3d 997, 1003 (9th Cir.

1998), abrogated on other grounds by Levin v. Commerce

Energy, Inc., 130 S. Ct. 2323 (2010). As the district court cor-

rectly observed, “While obtaining a visa may stand as a

potential obstacle to her entry into the United States, it does

not completely foreclose redressability. Ibrahim is not

required to solve all roadblocks simultaneously and is entitled

to tackle one roadblock at a time.”

[5] The government’s third argument, that Ibrahim’s inju-

ries are hypothetical because she has no immediate plans to

travel, is also unpersuasive. It is by no means clear that Ibra-

him has no plans to travel to non-US destinations. As noted

above, the presence of her name on the government’s No-Fly

List imposes real limitations on such travel. Further, it is obvi-

ous from her SAC that Ibrahim will return to the United

States if permitted to do so. Ibrahim regularly collaborates

with professors in the United States, is a member of several

professional organizations in the United States, and has an

extensive network of close friends in the United States. Ibra-

him has been invited to return to the United States on several

occasions since filing this lawsuit and has been obliged to

decline every invitation because of the legal obstacles to her

1310 IBRAHIM v. DHS

return. These are not hypothetical “ ‘some day’ intentions.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992).

[6] We therefore agree with the district court that Ibrahim

has standing under Article III to challenge the presence of her

name on government watchlists.

B. Constitutional Claims

Claim 13 of the SAC alleges that the placement of Ibra-

him’s name on the government’s terrorist watchlists violates

her right to freedom of association under the First Amend-

ment and her rights to equal protection and due process under

the Fifth Amendment.21

At this point in the litigation, no court has attempted to

determine the merits of Ibrahim’s claims under the First and

Fifth Amendments. The parties have not briefed whether her

placement on a terrorist watchlist violates her rights to free-

dom of association, equal protection, and due process. The

only question before us is whether Ibrahim even has the right

to assert such claims.

21

Claim 13 also alleges a violation of the Fourteenth Amendment, but

Ibrahim’s brief on appeal makes clear that this allegation refers to the

equal protection component of the Fifth Amendment. See Bolling v.

Sharpe, 347 U.S. 497 (1954). The heading to Claim 13 also alleges a vio-

lation of the Fourth Amendment, but the body of Claim 13 makes no refer-

ence to the Fourth Amendment, and Ibrahim’s brief on appeal makes clear

that she is alleging claims under only the First and Fifth Amendments.

Claim 13 also alleges violation of the Administrative Procedure Act, 5

U.S.C. § 500 et seq. We understand this to be an allegation that the APA

waives the sovereign immunity of the United States for violations of the

First and Fifth Amendments and authorizes remedies for such violations.

The government contends that Ibrahim has waived any right to appeal the

district court’s denial of her claim under the APA. We disagree, given that

Ibrahim’s APA claim ultimately depends on the viability of her First and

Fifth Amendment claims. See Califano v. Sanders, 430 U.S. 99, 105

(1977) (holding APA does not provide an independent basis for subject

matter jurisdiction in district courts).

IBRAHIM v. DHS 1311

[7] We begin with the uncontested proposition that if Ibra-

him had remained in the United States, she would have been

able to assert claims under the First and Fifth Amendments to

challenge her placement on the government’s terrorist watchl-

ists. It is well established that aliens legally within the United

States may challenge the constitutionality of federal and state

actions. See, e.g., Examining Bd. of Engineers, Architects and

Surveyors v. Flores de Otero, 426 U.S. 572, 580 (1976);

Mathews v. Diaz, 426 U.S. 67, 77 (1976); Hampton v. Mow

Sun Wong, 426 U.S. 88, 101-03 (1976); Sugarman v. Dougall,

413 U.S. 634, 641 (1973);Kwong Hai Chew v. Colding, 344

U.S. 590, 596 (1953); Torao Takahashi v. Fish and Game

Comm’n, 334 U.S. 410, 419-20 (1948). Even aliens who are

in the United States illegally may bring constitutional chal-

lenges, see, e.g., Plyler v. Doe, 457 U.S. 202, 211-12 (1982);

Wong Wing v. United States, 163 U.S. 228, 237 (1896),

including the ability to challenge the revocation of a visa, see

ANA Int’l Inc. v. Way, 393 F.3d 886, 893-84 (9th Cir. 2004)

(allowing judicial review of INS decision to revoke temporary

worker visa for purely legal questions, including constitu-

tional challenges). The question in this case is whether Ibra-

him lost the right she otherwise had because she left the

United States.

The Supreme Court has held in a series of cases that the

border of the United States is not a clear line that separates

aliens who may bring constitutional challenges from those

who may not. For example, a resident alien who voluntarily

leaves the United States on a brief trip with an intent to return

is constitutionally entitled to a due process hearing if the gov-

ernment seeks to exclude her upon return to the United States.

See, e.g., Landon v. Plasencia, 459 U.S. 21, 34 (1982) (resi-

dent alien entitled to constitutional due process hearing in

exclusion proceedings upon re-entry after a “few days”

abroad); Rosenberg v. Fleuti, 374 U.S. 449, 450 (1963) (entry

after innocent, casual, and brief excursion abroad did not

qualify as “entry” for immigration purposes); Kwong Hai

Chew, 344 U.S. at 593-95 (resident alien entitled to constitu-

1312 IBRAHIM v. DHS

tional due process hearing after exclusion following a five-

month voyage abroad). See also Boumediene v. Bush, 553

U.S. 723 (2008) (aliens held as enemy combatants outside the

de jure sovereign territory of the United States may petition

for habeas corpus to challenge the constitutionality of their

detention); Al Maqaleh v. Gates, 605 F.3d 84, 95-96 (D.C.

Cir. 2010) (location of alien outside the United States is only

a factor in determining the extraterritorial reach of the Consti-

tution); Nat’l Council of Resistance of Iran v. Dep’t of State,

251 F.3d 192 (D.C. Cir. 2001) (a foreign organization with

property in the United States entitled to constitutional due

process hearing before Secretary of State may classify it as a

“foreign terrorist organization”); Cardenas v. Smith, 733 F.2d

909, 915 (D.C. Cir. 1984) (Colombian national outside the

United States entitled to assert due process claim against U.S.

government based on seizure of her Swiss bank account); In

re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d

1301, 1308 n.6 (9th Cir. 1982) (nonresident aliens suing on

same cause of action as citizens have the right to assert tak-

ings claim).

[8] In United States v. Verdugo-Urquidez, 494 U.S. 259

(1990), the Supreme Court wrote that “aliens receive constitu-

tional protections when they have come within the territory of

the United States and developed substantial connections with

this country.” Id. at 271. The Court’s statement in Verdugo

was an elaboration of its earlier language in United States v.

Eisentrager, 339 U.S. 763 (1950), that an alien “is accorded

a generous and ascending scale of rights as he increases his

identity with our society.” Verdugo, 494 U.S. at 269 (quoting

Eisentrager, 339 U.S. at 770) (internal quotations omitted).

The Court wrote in Boumediene that the right of an alien out-

side the United States to assert constitutional claims is based

on “objective factors and practical concerns” rather than “for-

malism.” 553 U.S. at 764. In determining the constitutional

rights of aliens outside the United States, the Court applies a

“functional approach” rather than a bright-line rule. Id.

IBRAHIM v. DHS 1313

A comparison of Ibrahim’s case with Verdugo, Eisen-

trager, and Boumediene is instructive.

In Verdugo, plaintiff had been arrested in Mexico and

brought against his will to the Mexico-United States border,

where he was turned over to United States authorities and

imprisoned in the United States while awaiting trial on narcot-

ics smuggling charges. The Court held that the plaintiff had

“no previous significant voluntary connection with the United

States” and therefore had no right to assert a Fourth Amend-

ment challenge searches and seizures of his property by

United States agents in Mexico. Verdugo, 494 U.S. at 271

(emphasis added).

Relying on Verdugo, the government insists that Ibrahim

left the United States “voluntarily” and that she thereby for-

feited any right to assert constitutional claims she might have

had if she had remained in the United States. The government

mistakes the nature of the Verdugo inquiry. Under Verdugo,

the inquiry is whether the alien has voluntarily established a

connection with the United States, not whether the alien has

voluntarily left the United States. The circumstances of an

alien’s departure may cast some light on whether the alien has

established, and wishes to maintain, a voluntarily established

connection with the United States. But the mere fact that an

alien’s departure is voluntary tells us very little. In Ibrahim’s

case, she left the United States to attend a Stanford-sponsored

conference to present her academic research, performed in

connection with her Ph.D. studies at Stanford, and she

expected to return to Stanford after the conference to com-

plete her studies. Ibrahim thus did not intend to sever her

established connection to the United States by her voluntary

departure, but rather to develop that connection further.

In Eisentrager, the plaintiffs were German citizens who

had been arrested in China, convicted of violating the laws of

war after adversary trials before a U.S. military tribunal in

China, and sent to a prison in Germany to serve their sen-

1314 IBRAHIM v. DHS

tences. The Supreme Court held that they did not have a right

to seek a writ of habeas corpus under our Constitution. The

Court summarized:

[To agree with plaintiffs that they are entitled to seek

habeas] we must hold that a prisoner of our military

authorities is constitutionally entitled to the writ,

even though he (a) is an enemy alien; (b) has never

been or resided in the United States; (c) was cap-

tured outside of our territory and there held in mili-

tary custody as a prisoner of war; (d) was tried and

convicted by a Military Commission sitting outside

the United States; (e) for offenses against laws of

war committed outside the United States; (f) and is

at all times imprisoned outside the United States.

339 U.S. at 777.

Ibrahim’s case is unlike that of the plaintiffs in Eisentrager.

She has not been convicted of, or even charged with, any vio-

lation of law. She is a citizen of a country with which we have

never been at war. She contends that the placement of her

name on the government’s terrorist watchlists is a mistake.

Her contention is not implausible, given the frequent mistakes

the government has made in placing names on these lists. 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 connec-

tion.

[9] In Boumediene, the plaintiffs were aliens who had been

designated as enemy combatants and who were detained at

the United States Naval Station in Guantanamo. Plaintiffs had

not been tried or convicted of any crime. They sought federal

habeas corpus. The government argued that because plaintiffs

were aliens who had committed acts outside the United States

and were being detained outside the United States, they were

not entitled to seek habeas relief. The Court rejected the gov-

IBRAHIM v. DHS 1315

ernment’s proposed bright-line rule, calling it a “formal,

sovereignty-based test.” 553 U.S. at 764. The Court wrote that

while the United States does not have de jure sovereignty

over the Naval Station at Guantanamo Bay, it “maintains de

facto sovereignty.” Id. at 755. Applying a “functional

approach,” id. at 764, the Court held that the plaintiffs in

Boumediene, unlike the plaintiffs in Eisentrager, had a right

to seek a writ of habeas corpus.

Ibrahim shares an important similarity with the plaintiffs in

Boumediene. The Boumediene plaintiffs and Ibrahim both

sought (or seek) the right to assert constitutional claims in a

civilian court in order to correct what they contend are mis-

takes. In Boumediene, plaintiffs sought the right to try to

establish they were not, in fact, enemy combatants. Ibrahim

seeks the right to try to establish that she does not, in fact,

deserve to be placed on the government’s watchlists.

[10] The government in Boumediene proposed a bright-

line “formal sovereignty-based test” under which the absence

of de jure jurisdiction over Guantanamo would have meant

that plaintiffs had no right to seek habeas corpus under the

Constitution. The Court disagreed, adopting instead a “func-

tional approach” under which the absence of de jure jurisdic-

tion was not determinative. Id. at 764. The government

proposes a similar bright-line “formal sovereignty-based test”

in Ibrahim’s case. Under the government’s proposed test in

this case, any alien, no matter how great her voluntary con-

nection with the United States, immediately loses all constitu-

tional rights as soon as she voluntarily leaves the country,

regardless of the purpose of her trip, and regardless of the

length of her intended stay abroad. The government’s pro-

posed test is not the law. The law that we are bound to follow

is, instead, the “functional approach” of Boumediene and the

“significant voluntary connection” test of Verdugo.

[11] Under Boumediene and Verdugo, we hold that Ibra-

him has “significant voluntary connection” with the United

1316 IBRAHIM v. DHS

States. She voluntarily established a connection to the United

States during her four years at Stanford University while she

pursued her Ph.D. She voluntarily departed from the United

States to present the results of her research at a Stanford-

sponsored conference. The purpose of her trip was to further,

not to sever, her connection to the United States, and she

intended her stay abroad to be brief.

[12] We do not hold that tourists, business visitors, and all

student visa holders have the same connection to the United

States as Ibrahim. Nor do we hold that Congress is without

authority to exclude undesirable aliens from the United States

and to prescribe terms and conditions for entry and re-entry

of aliens. See, e.g., Hampton, 426 U.S. at 101 n.21; Galvan

v. Press, 347 U.S. 522, 530-31 (1954); Shaughnessy v. United

States ex rel. Mezei, 345 U.S. 206, 210-11 (1953). We hold

only that Ibrahim has established “significant voluntary con-

nection” with the United States such that she has the right to

assert claims under the First and Fifth Amendments. Like the

Court in Boumediene, we express no opinion on the validity

of the underlying constitutional claims. Boumediene, 553 U.S.

at 733.

D. Discovery Rulings

1. Discovery Order

Ibrahim challenges a discovery order entered by the district

court. After remand from this court but before the federal

defendants were dismissed, Ibrahim sought through discov-

ery: (1) FBI phone logs; (2) TSA employee logs from the San

Francisco airport; (3) TSA employee logs from the Transpor-

tation Security Operations Center; (4) the No-Fly List and

other documents identifying Ibrahim as a candidate for special

screening; (5) documents considered when placing Ibrahim’s

name on the No-Fly List; (6) documents considered when

placing Ibrahim’s name in the TSDB; (7) documents discuss-

ing her detention at SFO; (8) documents instructing law

IBRAHIM v. DHS 1317

enforcement to arrest or detain Ibrahim; (9) documents dis-

cussing instructions about the incident exchanged between

federal and local defendants; (10) documents discussing

instructions about her between federal and local defendants;

and (11) video recordings of certain conversations. The dis-

trict court did not rule on these requests before dismissing the

federal defendants.

After the federal defendants were dismissed, Ibrahim

renewed her discovery request on the ground that these docu-

ments were relevant to her still-pending claims for damages

against the city and private defendants. The district court

ordered the federal defendants to produce documents num-

bered (1) through (3) and (7) through (11), above, because the

information contained in these documents was relevant to

Ibrahim’s still-pending claims.

However, the district court denied Ibrahim’s request for

documents numbered (4) through (6), on the ground that the

federal defendants had been dismissed and that the informa-

tion contained in these documents was relevant, if at all, only

to the claims against the now-dismissed federal defendants.

The court also denied Ibrahim’s request for responses to inter-

rogatories directed to the federal defendants, on the ground

that interrogatories can be directed only to parties. Fed. R.

Civ. P. 33.

[13] We vacate the district court’s denial of discovery of

these three categories of documents, and its denial of the

request for interrogatories, in light of our holding that Ibrahim

has the right to assert claims against the federal defendants

under the First and Fifth Amendments. We leave it to the dis-

trict court to determine whether, in light of our holding, all or

part of Ibrahim’s discovery requests should be granted.

2. Disclosure of Non-testifying Experts.

Ibrahim also appeals the denial of her request to share Sen-

sitive Security Information with her non-testifying experts.

1318 IBRAHIM v. DHS

Sensitive Security Information is “information obtained or

developed in the conduct of security activities . . . the disclo-

sure of which TSA has determined would . . . [b]e detrimental

to the security of transportation.” 49 C.F.R. § 1520.5(a)(3).

Such information is shared only with “covered persons” who

have a “need to know” the information “to carry out transpor-

tation security activities.” Id. at 1520.7(j), 1520.11(a)(1).

Under § 525(d) of the Department of Homeland Security

Appropriations Act of 2007, Pub. L. No. 109-295, 120 Stat.

1355, 1382 (Oct. 4, 2006), Congress has authorized the dis-

closure of “Sensitive Security Information” during discovery

to civil litigants who show “substantial need” for the informa-

tion, provided that the district court

enters an order that protects the [Sensitive Security

Information] from unauthorized or unnecessary dis-

closure and specifies the terms and conditions of

access, unless upon completion of a . . . terrorist

assessment like that done for aviation workers on the

persons seeking access to [Sensitive Security Infor-

mation] . . . the Transportation Security Administra-

tion or DHS demonstrates that such access to the

information for the proceeding presents a risk of

harm to the nation.

[14] Ibrahim argues that the identity of non-testifying

experts is not discoverable, and that the identity of her experts

will be revealed if they are required to submit to a TSA back-

ground check. Rule 26(b)(4)(D) provides, “Ordinarily, a party

may not, by interrogatories or deposition, discover facts

known or opinions held by an expert who has been retained

or specially employed by another party in anticipation of liti-

gation or to prepare for trial and who is not expected to be

called as a witness at trial.” Ibrahim’s reliance on Rule 26 is

misplaced for three reasons. First, Rule 26 shields only

against disclosure through interrogatories and depositions; it

does not shield against disclosure when information is

required pursuant to a background check mandated by statute.

IBRAHIM v. DHS 1319

Second, Ibrahim has not shown how a background check will

reveal “facts known or opinions held” by her experts. Finally,

the rule does not prevent disclosure of the identity of a non-

testifying expert, but only “facts known or opinions held” by

such an expert. See also Fed. R. Civ. P. 26(b)(3)(B) (prevent-

ing disclosure of “mental impressions, conclusions, opinions,

or legal theories of a party’s attorney or other representative

concerning the litigation”). The district court correctly held:

It is commonplace for experts and consultants on

both sides of any ordinary civil action to be vetted so

that trade secrets and other sensitive information will

not fall into the hands of someone with an adverse

position to the owner of the sensitive information

(other than, of course, adverse parties to the litiga-

tion itself). The risk is simply too great that someone

in such an adverse position will be tempted to mis-

use sensitive information for a purpose other than the

litigation. For example, a trade secret might be mis-

appropriated by a consultant or expert and written

into a pending patent application. This risk is all the

greater when dealing with [Sensitive Security Infor-

mation] and national security. Indeed, it is hard to

imagine any legitimate reason for suppressing the

identity of experts or consultants and exempting

them from the security screening process, given that

our country has a legitimate need to know that those

experts and consultants can be trusted with the [Sen-

sitive Security Information] in this case.

(emphasis in original).

Conclusion

We hold that Ibrahim has significant voluntary connection

to the United States and she may therefore assert claims

against the federal defendants for prospective relief under the

1320 IBRAHIM v. DHS

First and Fifth Amendments. We vacate in part and affirm in

part the district court’s discovery rulings.

We REVERSE in part, AFFIRM in part, and VACATE in

part. We REMAND for further proceedings consistent with

this opinion. Costs to Appellant.

DUFFY, District Judge:

I dissent.

The facts that are pled and developed by the Petition and

submission of the government show that the Petitioner,

Rahinah Ibrahim, was in the United States from 2001 to 2005

on a student visa to earn her doctorate from Stanford Univer-

sity. Prior to the time she left her native Malaysia for Stan-

ford, she had been an assistant professor at the University

Putra Malaysia in Serdang, Malaysia. Near the end of her doc-

toral studies, Petitioner was invited to participate in a sympo-

sium at that same university to present her research. She

voluntarily purchased her ticket to Malaysia and made the

other necessary arrangements to attend the symposium. On

January 2, 2005, Petitioner arrived at the airport in San Fran-

cisco as per the ticket and was advised by a representative of

United Airlines that she was on a “No Fly” list. Instead of

issuing her a boarding pass, the representative called the San

Francisco police. Petitioner was arrested and detained for two

hours until F.B.I. agents arrived and directed that she be

released.1 The Petitioner was told she was no longer on the

“No Fly” list at that time. The very next day, Petitioner went

to the airport where she was again told her name was on the

1

Petitioner sued the San Francisco Airport, City and County of San

Francisco, San Francisco Police Department and certain San Francisco

Police Department officers for false arrest as part of this action. This claim

was settled when she received the sum of $225,000.

IBRAHIM v. DHS 1321

“No Fly” list. Petitioner nevertheless boarded her plane, and

although she claims she was subjected to enhanced scrutiny

and searches at every stopover on the trip, she successfully

arrived in Malaysia.

Petitioner attended the symposium and stayed in Malaysia

for an additional two months until March 10, 2005, when she

attempted to board a return flight to the United States. She

was prevented from doing so and was told by a ticketing

agent in Malaysia that she would have to wait for clearance

from the U.S. embassy before being permitted to board. She

was also told by another ticketing agent that a note next to her

name instructed airport personnel to alert the police and have

her arrested.

Petitioner has been unable to return to the United States

since leaving in 2005. She has remained in contact with her

friends at Stanford, using electronic devices and meeting with

them in person outside of the United States. She claims, how-

ever, that such means of contact are inadequate and lists them

among her injuries in bringing the present action. Petitioner

also claims her alleged placement on the “No Fly” list consti-

tutes injury because she is prevented from flying U.S. airline

carriers to other foreign countries and from otherwise flying

over U.S. airspace.

On March 24, 2005, Petitioner submitted a request to the

Transportation Security Administration’s (“TSA”) “Passenger

Identity Verification” program to clear her name from the

“No Fly” list. Petitioner received a written response approxi-

mately one year later, advising her that any records warrant-

ing corrections had been modified. This response did not

indicate whether Petitioner’s name appeared on the “No Fly”

list or other terrorist watchlists.

On April 14, 2005, an American consul in Malaysia sent

Petitioner a letter. She learned that the State Department had

1322 IBRAHIM v. DHS

revoked her student visa on January 31, 2005.2 The letter ref-

erenced Section 212(a)(3)(B) of the Immigration and Nation-

ality Act (“INA”) as grounds for revocation.3 This INA

provision was again referenced in the denial of her later appli-

cation for a visitor visa. Petitioner claims, however, that the

denials of her original student visa and her visitor visa appli-

cation are solely because she is on the “No Fly” list. She insti-

tuted this Petition to remove her name from the “No Fly” list

and other terrorist watchlists with the announced expectation

that the State Department would then issue her a visitor visa.

It is clear that one of the principal reasons Petitioner plans to

visit the United States is to advance her academic career.

The only evidence in the record concerning the relationship

between visa decisions and the “No Fly” list is the flat state-

ment by the State Department that the revocation of Petition-

er’s student visa did not depend on Petitioner’s being on the

“No Fly” list: “[v]isa decisions are independent from and

made without reference to any ‘No Fly’ list.”

As the majority recognizes, courts cannot interfere with the

granting (or revocation) of a visa. (See Bustamante v.

Mukasey, 531 F.3d 1059, 1060 (9th Cir. 2008))); see also 8

U.S.C. §§ 1104(a); 1201(I). The majority, however, would

grant Petitioner a hearing on the question of her placement on

2

Although according to Petitioner’s brief, her student visa was valid

until January 2007, it was due to expire at the end of her studies, which

occurred some three months later in June 2005.

3

The INA provides, in pertinent part, that any alien

who: (I) has engaged in a terrorist activity; (ii) 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; (iii) has,

under circumstances indicating an intention to cause death or

serious bodily harm, incited terrorist activity

is “ineligible to receive visas and ineligible to be admitted to the United

States . . . .” 8 U.S.C. § 1182(a)(3)(B).

IBRAHIM v. DHS 1323

the “No Fly” list, among other government watchlists. They

claim that the Petitioner has a constitutional right to such a

hearing because of her “substantial voluntary connections” to

the United States. The government has argued that an alien

located outside the jurisdiction of the United States cannot

seek a mandatory injunction for alleged “as applied” unconsti-

tutionality. I do not believe it necessary to adopt this bright

line test that the government suggests. Instead, let us turn to

the cases cited by the majority as precedent for their decision.

The majority relies on a number of cases to show that cer-

tain aliens located outside the United States can challenge the

constitutionality of U.S. laws. One such case is Kwong Hai

Chew v. Colding, 344 U.S. 590 (1953). In that case, the peti-

tioner, of Chinese ancestry, entered the United States in the

early 1940s during World War II. He served honorably in the

United States Merchant Marine and married an American

woman who had been born in this country. After the war, he

continued in his career as a seaman. He received seaman’s

papers from the United States Coast Guard, and in 1950 he

obtained a job on the S.S. Sir John Franklin, an American

flagship. The voyage took several months. At all times during

this voyage, Kwong Hai Chew was serving as a seaman under

American articles and thus was under de facto jurisdiction of

the United States. If he had violated U.S. law, the United

States could have prosecuted him. Kwong Hai Chew was also

entitled to U.S. “maintenance and cure.”4 Upon the ship’s

return to San Francisco, Kwong Hai Chew was denied entry,

and the ship thereafter sailed to New York where Kwong Hai

Chew was put on Ellis Island “for safe-keeping on behalf of

4

“Maintenance and cure” is a benefit given to American seamen under

an ancient doctrine that the master of a ship cannot abandon a sick seaman

in a foreign port but must see to the well-being of the seaman. Thus, the

master must pay for the “cure” of the seaman’s injury or illness and to

maintain the seaman until he can be returned to the home port. Rules for

such expenditures are set in part by the flag of the vessel, in which the sea-

man served. 1B Matthew Bender, Benedict on Admiralty § 42 (7th ed.

2011).

1324 IBRAHIM v. DHS

the master of the S.S. ‘Sir John Franklin.’ ” Id. at 595. The

Supreme Court recognized that, while Kwong Hai Chew was

on the high seas, he was at all times under the jurisdiction of

the United States, as evidenced by the American flag on the

S.S. Sir John Franklin.

Kwong Hai Chew did not attack the validity of the law that

permitted the United States Attorney General to exclude cer-

tain aliens from entry into the United States. The Court

viewed his position as if he were within the continental

United States at all times in question and permitted the issu-

ance of the writ of habeas corpus. Kwong Hai Chew merely

proves the majority’s “uncontested proposition that if Ibrahim

had remained in the United States,” she would have been able

to challenge the constitutionality of the government’s action

in placing her on the terrorist watchlists. In the instant case,

Petitioner resides in Malaysia and, therefore, does not enjoy

the right of constitutional challenge.

Slightly more instructive on the issue of whether aliens

located outside of the United States can bring constitutional

claims is Boumediene v. Bush, 553 U.S. 723 (2008). There,

the action was brought on behalf of certain aliens held captive

at the U.S. naval base at Guantánamo Bay, Cuba. Boumed-

iene and his fellow petitioners found themselves under de

facto U.S. jurisdiction in Guantánamo Bay, where the United

States exercised “absolute and indefinite control.” Id. at 727.

The Supreme Court rejected the same bright line test pro-

posed by the government here and found that Boumediene

and his fellow petitioners had the right to seek the writ of

habeas corpus. The Supreme Court’s decision did not disre-

gard the extraterritoriality of the claims being asserted, but

focused instead on the fact that Boumediene and his fellow

petitioners held at Guantánamo Bay were in U.S. custody fol-

lowing capture in, and transfer from, various foreign lands.

Here, the Petitioner, knowing that she could be forever

banned from returning to this country, voluntarily left and

IBRAHIM v. DHS 1325

returned to her native land, outside of U.S. jurisdiction.5 No

one can believe that she did not know exactly the conse-

quences of the choice she made.

In Johnson v. Eisentrager, 339 U.S. 763 (1950), a group of

German nationals sought the writ of habeas corpus after being

arrested by the United States Army in China, convicted of

violating the laws of war by a Military Commission sitting in

China, and imprisoned in Germany. The Supreme Court held

that such “enemy aliens, resident, captured and imprisoned

abroad” did not have the right to seek the writ. Id. at 777. The

majority concludes that because the Petitioner is not such a

person, she may seek redress for her constitutional claims.

The majority, however, overlooks the fact that, like the peti-

tioners in Eisentrager, the Petitioner does not find herself

under U.S. jurisdiction, whether de jure or de facto, as did the

petitioners in Boumediene.

I must also note a crucial distinction between Boumediene

and Eisentrager on the one hand and the present case on the

other. The petitioners in the habeas cases cited above sought

to challenge their detention at U.S. hands, whereas the Peti-

tioner is not in our custody and therefore can have no grounds

on which to seek similar relief.

5

The majority attempts to analogize Boumediene and the present case by

stating that petitioners in both cases simply sought to correct mistakes the

United States had made concerning their status. The majority spends much

space on the failures of the TSA, the Terrorist Screening Center and other

government agencies in managing the “No Fly” and other watchlists. To

my mind, the statistics quoted show a real effort on the government’s part

to reduce the mistakes and to remove as many people from the “No Fly”

and other government watchlists as possible. This effort was expended

over the entire time that Petitioner was making complaints and pursuing

this lawsuit. It seems to me that, if possible, the government would prefer

to drop someone from the watchlists rather than have a possible airing

(through costly and public litigation) of the mistakes made. All of which,

I believe, is evidence that Petitioner’s placement on the “No Fly” list was

not a mistake.

1326 IBRAHIM v. DHS

The majority relies on the standard set forth by the

Supreme Court in United States v. Verdugo-Urquidez, 494

U.S. 259 (1990), to conclude that Petitioner may assert her

constitutional claims. Verdugo was a Mexican national who

was arrested in Mexico, brought to the United States against

his will and imprisoned pending the outcome of narcotics

smuggling charges against him. The Supreme Court held that

Verdugo had no right to assert claims that the search and sei-

zure of his property in Mexico constituted a Fourth Amend-

ment violation when he had “no previous significant

voluntary connection with the United States . . . .” Id. at 271.

The majority distinguishes Verdugo by finding that Peti-

tioner “established a substantial voluntary connection with the

United States through her studies at a distinguished American

university.” I cannot come to the same conclusion. If we were

to hold today that Petitioner may assert her constitutional

claims because she formed a “substantial voluntary connec-

tion with the United States” while here on a student visa, then

we would be hard pressed not to allow all alien students who

studied in the United States and subsequently left the country

to bring constitutional claims in our courts.

The majority seems to think that the holding of this case

can be restricted to Petitioner and her constitutional claims

alone. In doing so, however, it points to no reason why those

similarly situated to the Petitioner could not avail themselves

of the holding of this case. The majority believes it is enough

that Petitioner (1) was in the country for a period of time, and

(2) that upon departure she intended to come back to the

country. If this were sufficient to vest constitutional rights in

an alien located outside of the United States to bring actions

in the United States against the government, there would be

a significant number of aliens in the world just waiting to get

into court. For example, a visitor to this country who over-

stays his visa, makes a livelihood in this country for a sub-

stantial amount of time, and chooses voluntary departure

when caught as an illegal alien, could fit within the class of

IBRAHIM v. DHS 1327

people who would have such rights. He would have been in

the country for a “substantial time” and would have friends

and contacts in this country—as would most illegal aliens. As

such, he would most likely have the desire and intention to

return to this country.

As this example shows, the majority holding is too broad,

while the government’s bright line argument based on extra-

territoriality is too narrow and hidebound for use in the mod-

ern world.

In the case at bar, however, there is no need to set forth a

definitive test because the simple answer is that Petitioner has

not shown a “substantial voluntary connection” with the

United States, which is the measurement the majority believes

the precedent would require. The Petitioner does not suggest

that she ever worked in or paid taxes to the United States or

indeed did anything (except study at a university) to indicate

that she ever made a conscious decision to live in this country

or to accept any of the responsibilities of a permanent resi-

dent. She merely came to acquire the education available and

thereby improve her position in her own native country. Obvi-

ously, the Petitioner is quite content in having advanced from

assistant professor at the University Putra Malaysia prior to

obtaining her doctorate to associate professor and Deputy

Dean of that university now. At all times that she was in the

United States, her main objective was to personally benefit

from this country. Any contribution the Petitioner made to the

United States was incidental to this objective.6 That, to my

mind, is totally insufficient to constitute a substantial volun-

tary connection.

Compare the instant case with Kwong Hai Chew who, as

discussed above, had an American-born wife, had become a

6

In fact, Petitioner’s own declaration shows she intended to contribute

not to the United States, but to “the construction industry in Malaysia, spe-

cifically in the architecture field.”

1328 IBRAHIM v. DHS

permanent resident and had already filed a petition for natu-

ralization before he left the country.

In any event, the real complaint that Petitioner has is that

she no longer has a visa to come and go as she pleases. We

already have, in the record, a statement from the State Depart-

ment establishing that Petitioner’s removal from the “No Fly”

list will not affect its visa determinations as concern her and

that she will not get the visa she desires. Neither this action,

nor any other court action, can redress her complaint.

Section 1104(a) of Title 8 sets forth the powers and duties

of the Secretary of State, specifically excluding the authority

to review consular officers’ determinations “relating to the

granting or refusal of visas.” Section 1201(I) of Title 8

expressly precludes visa revocations from judicial review.

Read together, courts have extended the application of Sec-

tion 1104(a) to preclude administrative and judicial review of

all factual determinations relating to visa applications. See,

e.g., Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir.

2008). Courts are therefore deprived of the power to order the

State Department to issue a visa.

This is as it should be. These questions are clearly political

and should not be resolved by the judicial branch of our gov-

ernment. Thus, the claimed injury of which Petitioner suffers

is non-redressable. At a constitutional minimum, “it must be

‘likely,’ as opposed to merely ‘speculative,’ that the injury

will be ‘redressed by a favorable decision.’ ” Lujan v. Defend-

ers of Wildlife, 504 U.S. 555, 560-61 (1992) (citing Simon v.

Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42

(1976)). Petitioner seeks an injunction to remove her name

from any government watchlist, including the “No-Fly” list,

to enable her passage to the United States to attend confer-

ences and further her professional relationships. Removal of

her name, however, does not ensure lawful entry into the

United States. Petitioner must first obtain a valid visa.

IBRAHIM v. DHS 1329

The majority cites to the District Court’s observation that

“[w]hile obtaining a visa may stand as a potential obstacle to

her entry into the United States, it does not completely fore-

close redressability. Petitioner is not required to solve all

roadblocks simultaneously and is entitled to tackle one road-

block at a time.” This may ring true where remaining road-

blocks do not preclude a likely redress. Here, however, the

State Department based its denial of Petitioner’s visa applica-

tion on grounds other than her “No-Fly” status. Petitioner’s

inability to obtain a valid visa despite her removal from the

“No Fly” list or any other government watchlist constitutes

more than a “potential obstacle” to her entry—it renders her

entry highly speculative at best.

In sum, I would affirm the District Court and hold that the

alien Petitioner has no standing to bring this action since she

has no substantial voluntary connection to this country. I

would further hold that Petitioner’s alleged harm is ultimately

non-redressable and thus, she is without standing to bring her

claim in this or any other federal court.