Rahinah Ibrahim v. Department of Homeland Securit, et al
FILED OPINION (DOROTHY W. NELSON, WILLIAM A. FLETCHER and KEVIN THOMAS DUFFY) We REVERSE in part, AFFIRM in part, and VACATE in
part. We REMAND for further proceedings consistent with
this opinion. Costs to Appellant. Judge: WAF Authoring, Judge: KTD Dissenting. FILED AND ENTERED JUDGMENT.  (RP)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAHINAH IBRAHIM, an individual,
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
BUCELLA, in her official capacity
as former Director of the Terrorist
Screening Center; FEDERAL BUREAU
OF INVESTIGATION; ROBERT S.
MUELLER, III, in his official
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
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Page: 2 of 36
IBRAHIM v. DHS
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,
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. District Court for Southern New York, New York, sitting by designation.
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IBRAHIM v. DHS
James McManis, Marwa Elzankaly, Christine Peek, Elizabeth
Pipkin, McMANIS FAULKNER, San Jose, California, for the
Paul G. Freeborne, Douglas Neal Letter, Joshua P. Waldman,
US DEPARTMENT OF JUSTICE, Washington, D.C.; Sharon
Douglass Mayo, ARNOLD & PORTER, San Francisco, California; and Ronald P. Flynn, Peter Julian Keith, SAN FRANCISCO CITY ATTORNEY’S OFFICE, San Francisco,
California, for the appellees.
Veena Dubal, ASIAN LAW CAUCUS, San Francisco, California, and Maria V. Morris, Sanford Jay Rosen, ROSEN
BIEN & GALVAN, LLP, San Francisco, California, for the
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 Stanfordsponsored 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
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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
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
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.
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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 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.
Subsequently renamed “The Freedom Center.” Transportation Security
Administration, Transportation Security Operations Center Re-Named
dedication.shtm (last visited Aug. 30, 2011).
IBRAHIM v. DHS
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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
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.
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IBRAHIM v. DHS
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 Malaysia’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 coauthored 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.”
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
IBRAHIM v. DHS
Page: 8 of 36
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 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.3 The State Department uses a
subset of the TSDB to screen visa applicants through the Consular 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 pri2
Five Years After the Intelligence Reform and Terrorism Prevention
Act: Stopping Terrorist Travel: Hearing Before the S. Comm. on Homeland Sec. and Governmental Affairs, 111th Cong. 1-2 (Dec. 9, 2009)
(Statement of Timothy J. Healy, Director, Terrorist Screening Center)
[hereinafter “Healy Statement”].
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”].
Id. at 30.
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IBRAHIM v. DHS
vate sector entities and individuals.5 As of January 2011, TSC
had also agreed to share information with 22 foreign governments.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 aviation 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
U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-10-401T, HOMELAND SECURBETTER USE OF TERRORIST WATCHLIST INFORMATION AND IMPROVEMENTS
IN DEPLOYMENT OF PASSENGER SCREENING CHECKPOINT TECHNOLOGIES COULD
FURTHER STRENGTHEN SECURITY 2 (2010) [hereinafter “2010 GAO Statement”].
U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-11-335, VISA WAIVER PROGRAM: DHS HAS IMPLEMENTED THE ELECTRONIC SYSTEM FOR TRAVEL AUTHORIZATION, BUT FURTHER STEPS NEEDED TO ADDRESS POTENTIAL PROGRAM
RISKS 21 n.24 (2011) [hereinafter “2011 GAO Report”].
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”].
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”).
Healy Statement at 2.
Id. at 1.
2007 DOJ REPORT at iii.
IBRAHIM v. DHS
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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 nomination 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 encountered 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 “neither 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 difficulties, the action the government took to address those difficulties, or other steps that they may take to help themselves
in the future.”17
Id. at 32-33 & n.49.
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”].
Id. at 34.
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
See 2006 GAO Report at 31.
2009 DHS Report at 89.
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IBRAHIM v. DHS
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.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
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 Francisco, 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 arising 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
2007 DOJ Report at xix.
2009 DHS Report at 33-34.
IBRAHIM v. DHS
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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 dismissal of the federal defendants. We held that § 46110(a)
does not bar district court jurisdiction over Ibrahim’s challenges to her placement on the government terrorist watchlists, 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 Administrative Procedure Act (“APA”), which we construe as an allegation 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 terrorist watch lists, including the No-Fly List, or, in the alternative, to provide procedures under which she could challenge
her inclusion on those lists.
Ibrahim had also filed a petition directly with the Ninth Circuit pursuant 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.
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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 government 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 district court speculated that Ibrahim’s inclusion in the No-Fly
List might be a “monumental mistake,” but nonetheless dismissed Claim 13, holding that Ibrahim was “an alien who voluntarily 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.
Standard of Review
We review de novo a district court’s dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6) for failure 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 liberally 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 discretion. Laub v. US Dep’t of Interior, 342 F.3d 1080, 1084
(9th Cir. 2003).
“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
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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)).
 Ibrahim seeks only prospective relief against the federal 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 Johnson v. California, 43 U.S. 499, 504-05 (2005), or show a credible threat of future injury, City of Los Angeles v. Lyons, 461
U.S. 95, 106 (1983).
 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 judicial decision will not redress Ibrahim’s injury. The government 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.
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IBRAHIM v. DHS
 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 subsequent 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 subject 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 Ibrahim 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 subset of the TSDB — to make visa determinations.
The government’s second argument, that a favorable decision will not redress her injury, is also unpersuasive. The government 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 prevents 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.
 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
Page: 16 of 36
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 connection 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 injuries].” Wilbur v. Locke, 423 F.3d 1101, 1108 (9th Cir. 2005)
(internal quotations omitted, emphasis and alterations in original) (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 correctly 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.”
 The government’s third argument, that Ibrahim’s injuries are hypothetical because she has no immediate plans to
travel, is also unpersuasive. It is by no means clear that Ibrahim 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 obvious 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. Ibrahim 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
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IBRAHIM v. DHS
return. These are not hypothetical “ ‘some day’ intentions.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992).
 We therefore agree with the district court that Ibrahim
has standing under Article III to challenge the presence of her
name on government watchlists.
Claim 13 of the SAC alleges that the placement of Ibrahim’s name on the government’s terrorist watchlists violates
her right to freedom of association under the First Amendment 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 freedom of association, equal protection, and due process. The
only question before us is whether Ibrahim even has the right
to assert such claims.
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 violation of the Fourth Amendment, but the body of Claim 13 makes no reference 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
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 We begin with the uncontested proposition that if Ibrahim 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 watchlists. 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 challenges, 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 constitutional challenges). The question in this case is whether Ibrahim lost the right she otherwise had because she left the
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 government seeks to exclude her upon return to the United States.
See, e.g., Landon v. Plasencia, 459 U.S. 21, 34 (1982) (resident 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-
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IBRAHIM v. DHS
tional due process hearing after exclusion following a fivemonth 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 Constitution); 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 takings claim).
 In United States v. Verdugo-Urquidez, 494 U.S. 259
(1990), the Supreme Court wrote that “aliens receive constitutional 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 outside the United States to assert constitutional claims is based
on “objective factors and practical concerns” rather than “formalism.” 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
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A comparison of Ibrahim’s case with Verdugo, Eisentrager, 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 narcotics 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 Amendment challenge searches and seizures of his property by
United States agents in Mexico. Verdugo, 494 U.S. at 271
Relying on Verdugo, the government insists that Ibrahim
left the United States “voluntarily” and that she thereby forfeited 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 complete 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-
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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
[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 captured outside of our territory and there held in military 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 violation 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 connection.
 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
Page: 22 of 36
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 mistakes. 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.
 The government in Boumediene proposed a brightline “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 “functional approach” under which the absence of de jure jurisdiction 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 connection with the United States, immediately loses all constitutional 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 proposed 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.
 Under Boumediene and Verdugo, we hold that Ibrahim has “significant voluntary connection” with the United
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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 Stanfordsponsored 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.
 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 connection” 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.
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 discovery: (1) FBI phone logs; (2) TSA employee logs from the San
Francisco airport; (3) TSA employee logs from the Transportation 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 discussing her detention at SFO; (8) documents instructing law
IBRAHIM v. DHS
Page: 24 of 36
enforcement to arrest or detain Ibrahim; (9) documents discussing 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 district court did not rule on these requests before dismissing the
After the federal defendants were dismissed, Ibrahim
renewed her discovery request on the ground that these documents 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 numbered (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 information 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 interrogatories directed to the federal defendants, on the ground
that interrogatories can be directed only to parties. Fed. R.
Civ. P. 33.
 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 district court to determine whether, in light of our holding, all or
part of Ibrahim’s discovery requests should be granted.
Disclosure of Non-testifying Experts.
Ibrahim also appeals the denial of her request to share Sensitive Security Information with her non-testifying experts.
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Sensitive Security Information is “information obtained or
developed in the conduct of security activities . . . the disclosure 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 transportation 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 disclosure of “Sensitive Security Information” during discovery
to civil litigants who show “substantial need” for the information, provided that the district court
enters an order that protects the [Sensitive Security
Information] from unauthorized or unnecessary disclosure 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 Information] . . . the Transportation Security Administration or DHS demonstrates that such access to the
information for the proceeding presents a risk of
harm to the nation.
 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 background 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 litigation 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
Page: 26 of 36
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 nontestifying expert, but only “facts known or opinions held” by
such an expert. See also Fed. R. Civ. P. 26(b)(3)(B) (preventing 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 litigation itself). The risk is simply too great that someone
in such an adverse position will be tempted to misuse sensitive information for a purpose other than the
litigation. For example, a trade secret might be misappropriated by a consultant or expert and written
into a pending patent application. This risk is all the
greater when dealing with [Sensitive Security Information] 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 [Sensitive Security Information] in this case.
(emphasis in original).
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
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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:
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 University. Prior to the time she left her native Malaysia for Stanford, she had been an assistant professor at the University
Putra Malaysia in Serdang, Malaysia. Near the end of her doctoral studies, Petitioner was invited to participate in a symposium 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 Francisco 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
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
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“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
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, however, 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 constitutes 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 approximately one year later, advising her that any records warranting 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
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IBRAHIM v. DHS
revoked her student visa on January 31, 2005.2 The letter referenced Section 212(a)(3)(B) of the Immigration and Nationality Act (“INA”) as grounds for revocation.3 This INA
provision was again referenced in the denial of her later application for a visitor visa. Petitioner claims, however, that the
denials of her original student visa and her visitor visa application are solely because she is on the “No Fly” list. She instituted 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 statement by the State Department that the revocation of Petitioner’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
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.
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
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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” unconstitutionality. 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 certain 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 petitioner, 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
“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 seaman served. 1B Matthew Bender, Benedict on Admiralty § 42 (7th ed.
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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 certain 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 issuance 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. Boumediene 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 proposed 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 disregard 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 following 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
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returned to her native land, outside of U.S. jurisdiction.5 No
one can believe that she did not know exactly the consequences 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 petitioners 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 Petitioner is not in our custody and therefore can have no grounds
on which to seek similar relief.
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.
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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 seizure of his property in Mexico constituted a Fourth Amendment violation when he had “no previous significant
voluntary connection with the United States . . . .” Id. at 271.
The majority distinguishes Verdugo by finding that Petitioner “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 connection 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 overstays his visa, makes a livelihood in this country for a substantial amount of time, and chooses voluntary departure
when caught as an illegal alien, could fit within the class of
IBRAHIM v. DHS
Page: 34 of 36
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 extraterritoriality is too narrow and hidebound for use in the modern 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 resident. She merely came to acquire the education available and
thereby improve her position in her own native country. Obviously, 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 voluntary connection.
Compare the instant case with Kwong Hai Chew who, as
discussed above, had an American-born wife, had become a
In fact, Petitioner’s own declaration shows she intended to contribute
not to the United States, but to “the construction industry in Malaysia, specifically in the architecture field.”
Page: 35 of 36
IBRAHIM v. DHS
permanent resident and had already filed a petition for naturalization 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 Department 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 Section 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 government. 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. Defenders 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 conferences 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
Page: 36 of 36
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 foreclose redressability. Petitioner is not required to solve all
roadblocks simultaneously and is entitled to tackle one roadblock at a time.” This may ring true where remaining roadblocks do not preclude a likely redress. Here, however, the
State Department based its denial of Petitioner’s visa application 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.
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