Trial judge finds for plaintiff Dr. Ibrahim in no-fly case

Following a week-long trial in Federal court in San Francisco last month, Judge William Alsup found today that Dr. Rahinah Ibrahim’s due process rights were violated when she was placed on the “no-fly” list.  “Judgment is HEREBY ENTERED in favor of plaintiff to the extent stated in the findings of fact, conclusions of law, and order for relief.”

Only a summary of Judge Alsup’s ruling has been made public. The government wanted the entirety of the verdict (against the government) to be kept secret: “In the Court’s view, all of the separate order should be made public, but it will remain under seal and the parties (and counsel) shall maintain its secrecy until APRIL 15, 2014, so that our court of appeals can rule on the government’s desire to maintain its secrecy.”

Judge Alsup ordered the government to correct Dr. Ibrahim’s status on the no-fly list (and certify under oath that it has done so), and disclose to Dr. Ibrahim whether she is or is not now on the list:

This much, however, can be and will be revealed publicly now by way of summary. All of the government’s standing arguments are overruled…. Our court of appeals … held that plaintiff, even though an alien living overseas, did have standing. The government did not seek higher review of this ruling.

Turning to the merits, some but not all of the relief sought by plaintiff has been granted. In order for the district court to grant relief on a claim that a plaintiff has been wrongly listed in a government terrorist watchlist, that listing must first result in concrete, reviewable adverse government action against the plaintiff, such as refusal of permission to board a plane. This means that a judicial remedy must, by necessity, be a post-deprivation remedy. Once a plaintiff shows concrete, reviewable adverse government action has occurred, and, as here, shows that the action resulted from an error by the government, then the plaintiff is entitled by due process to a post-deprivation remedy that requires the government to cleanse and/or correct its lists and records of the mistaken information and to certify under oath that such correction(s) have been made. The government’s administrative remedies fall short of such relief and do not supply sufficient due process. In light of the confusion caused by the government’s mistake, such cleansing-certification relief is ordered in this case. Also, the government is ordered to disclose to plaintiff her current status on (or off) the no-fly list (without prejudice to future adjustments based on new information). In this connection, the government concedes that plaintiff is not a threat to our national security.

Although a district court cannot review the decision of a consular officer in denying a visa to a nonimmigrant alien, when a nonimmigrant alien with standing to assert constitutional rights has been denied a visa under Section 212(a)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B), the consular officer must specify which of the nine subsections was the basis of the denial. Din v. Kerry, 718 F.3d 856, 862 (9th Cir. 2013). This relief is ordered here.

If, moreover, a consular officer advises a nonimmigrant alien that she is not eligible to seek a discretionary waiver of inadmissibility when, under the law, she is eligible to at least apply for a waiver, that erroneous advisement may be reviewed by a district court to the limited extent of requiring the government to inform the nonimmigrant alien that she is eligible to at least apply for a discretionary waiver. Such relief is ordered here. The subsequent grant or denial of any such application, however, would not be reviewable….

IT IS SO ORDERED.

Dated: January 14, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

“Justice has finally been done for an innocent woman who was wrongly ensnared in the government’s flawed watch listing system,” said Elizabeth Pipkin, lead trial counsel for Dr. Ibrahim along with Christine Peek, Ruby Kazi, and Jennifer Murakami.

We fear that today’s ruling is, unfortunately, unlikely to be “final” in light of inevitable appeals by the government. But as the first substantive ruling on the government’s system of secret administrative “no-fly” orders, it is a major step toward bringing the DHS and its control of travel within the rule of law.

14 Responses to “Trial judge finds for plaintiff Dr. Ibrahim in no-fly case”

  1. Federal Judge: No-Fly List Violates Due Process | TSA Out of Our Pants! Says:

    [...] is a good day in the courts: a federal judge in California has ruled in favor of Dr. Rahinah Ibrahim, the college professor who once left the country to go to a conference and, [...]

  2. Kat Capps Says:

    Is there any word regarding the banning of plaintiffs daughter from the flight?

  3. Edward Hasbrouck Says:

    @KatCapps - From the public record, it appears that Dr. Ibrahims’s lawyers chose not to ask to postpone the trial to try (again) to get Dr. Ibrahim’s daughter to the U.S. testify or attend the trial. There was an extended hearing and argument about this in closed court on Friday, December 6, 2013:

    http://papersplease.org/wp/2013/12/07/no-fly-trial-day-5-part-2-what-happened-to-the-plaintiffs-daughter/

    The last public word about Dr. Ibrahim;s daughter, in relation to her mother’s lawsuit, was a filing by Dr. Ibrahim’s lawyers on Monday, December 9,, 2013:

    http://papersplease.org/wp/2013/12/09/no-fly-trial-what-happens-now/

    “Because of concerns about the safety and liberty of Ms. Mustafa Kamal were she to attempt to travel to the United States, plaintiff elects to proceed on the evidence presented at the trial, with one caveat that plaintiff mentioned at the hearing on Friday.”

    As we noted at the time, the most obvious potential concern for Ms. Mustafa Kamal is that she might be allowed to fly to the U.S., but then not allowed to return to Malaysia, where she lives and works.

    There’s also no indication in the public record of whether, or if so when, Dr. Ibrahim’s daughter (who was born in the US and is a US citizen) might try to travel to US, or if she would now be allowed to do so. At this point, that would appear to be a matter for a separate lawsuit, should her right of return to the US be interfered with by the US government, and should she choose to bring such a lawsuit.

    One of our readers (who prefers to remain anonymous) offered to buy her a round-trip airline ticket from Kuala Lumpur to San Francisco to test if she would be allowed to fly to the US, and to enable her to challenge any interference with her right to travel to the US. allowed to fly to US. We communicated that offer to her through Dr. Ibrahim’s lawyers, but have have received no response as yet.

  4. Court Reinstates Professor Rahinah Ibrahim's lawsuit over No-Fly List - Page 5 - FlyerTalk Forums Says:

    [...] The Identity Project: "Trial judge finds for plaintiff Dr. Ibrahim in no-fly case" http://papersplease.org/wp/2014/01/1…n-no-fly-case/ [...]

  5. Edward Hasbrouck Says:

    News release (with links to information on the two other major pending no-fly lawsuits):

    Civil Rights Groups Welcome Legal Victory Against ‘No-Fly’ List

  6. Papers, Please! » Blog Archive » Judge orders parties to “no-fly” lawsuit to make their arguments public Says:

    [...] Papers, Please! Challenging ID Demands The Identity Project explores and defends the fundamental American right to move freely around our country and to live without constantly having to prove who we are or why we are here. Home The Issue Who We Are What We Do Secure Flight Featured Cases Policy Analysis Lawyer’s Corner Take Action Press Room Contact Us Friends « Trial judge finds for plaintiff Dr. Ibrahim in no-fly case [...]

  7. Papers, Please! » Blog Archive » Second judge finds “no-fly” orders may violate due process and right to travel Says:

    [...] motion to dismiss a complaint challenging the US “no-fly” list. At least as long as Judge Alsup’s decision in Ibrahim v. DHS remains secret, today’s ruling in the case of Mohamed v. Holder contains the strongest and [...]

  8. Papers, Please! » Blog Archive » Defendants in “no-fly” case ignore judge’s deadline to make their arguments public Says:

    [...] don’t (yet) have any more information about Judge Alsup’s ruling in this case, beyond his own summary. Judge Alsup directed the parties to “meet and [...]

  9. Edward Hasbrouck Says:

    Press Release by Professor Dr. Hajah Rahinah Ibrahim

    http://mcmanislaw.com/press/ibrahim-media-coverage/2014/Press-Release-by-Professor-Dr-Hajah-Rahinah-Ibrahim

  10. Edward Hasbrouck Says:

    Canada refuses to give answers about getting off no-fly list:

    http://www.thestar.com/opinion/commentary/2014/01/25/canada_refuses_to_give_answers_about_getting_off_nofly_list.html

  11. Papers, Please! » Blog Archive » Government finally admits plaintiff was on the “no-fly” list Says:

    [...] case challenging the US government’s “no-fly” list, and more than a week after Judge William Alsup’s decision that the rights of the plaintiff in the case, Dr. Rahinah Ibrahim, were violated, the government [...]

  12. Papers, Please! » Blog Archive » Does a US citizen need the government’s permission to return to the US? Says:

    [...] a declaration from Ms. Dugan. That declaration was filed “under seal”, but after his verdict Judge Alsup reiterated his order that a  summary or redacted version of each sealed document, [...]

  13. Papers, Please! » Blog Archive » The price of justice: 9 years, $3.9 million, and counting Says:

    [...] opinion has been made public. Unless otherwise ordered by the 9th Circuit Court of Appeals, the full opinion will be made public on April 15, 2014. In the meantime, according to the latest filing on behalf of Dr. Ibrahim, the government [...]

  14. Papers, Please! » Blog Archive » More details of Judge Alsup’s decision in “no-fly” case Says:

    [...] insistence that even his verdict would reveal “secrets“, Judge Alsup originally issued his opinion and order temporarily under seal (to give the government a chance to appeal), accompanied by an unusual [...]

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