USA: Appelate court affirms foreign nationals’ standing to challenge a “no-fly list” inclusion

Rahinah Ibrahim, a Malaysian national and university professor, was legally in the United States as a Ph.D. student at Stanford University from 2001 – 2005. In early 2005, she attempted to travel to a Stanfordsponsored conference in Malaysia where she was to present her doctoral research. Alledgedly mistakenly placed on the “No-Fly List”, she was prevented from flying and was detained in a holding cell for two hours at the San Francisco airport. She was then 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.Unable to resolve the error with the TSA, she brought suit in U.S. Federal Court, seeking damages, and alleging her First and Fifth Amendment rights were violated. She also sought injunctive relief to have her name immediately removed from the No-Fly List.The Department of Homeland Security and other federal agencies named as defendants moved to dismiss, arguing that Ibrahim lacked standing under Article III of the Constitution, as well as in her ability to assert First and Fifth Amendment claims from abroad.The Court of Appeal for the Ninth Circuit found that Ibrahim had standing to sue under Article III, as(a) being named on the No-Fly List was an injury,(b) a favorable judicial decision (i.e., a court order that her name be removed from the No-Fly List) would in fact redress those injuries, and(c) that her alleged injuries were not hypothetical just because she has no immediate plans to travel to the U.S.As to the First and Fifth Amendment claims, the Court found that Ibrahim did not leave her constitutional rights “at the water’s edge” when she departed and had the right to assert the claims because of her “significant voluntary connection” to the U.S. established over four years studying at Stanford. This was noteworthy considering her actual status as a foreign national who was no longer physically present in the U.S. Further, the court found evidence that the No-Fly and other government watchlists are shared by the U.S. with 22 foreign governments, making it reasonable to infer that Ibrahim “will suffer delays (or worse) when travelling abroad, even on foreign carriers, resulting from the presence of her name on the No-Fly List.”Full text of decison in Ibrahim v. Department of Homeland Security Case No. 10-15873 (C.A. 9, Feb. 8, 2012) avaialble in pdf here>>.

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