Asgari v. Trump et al

Filing 1

COMPLAINT against All Defendants Filing fee: $ 400, receipt number 0101-6479440 (Fee Status: Filing Fee paid), filed by Samira Asgari. (Attachments: # 1 Civil Cover Sheet, # 2 Category Form, # 3 Exhibit 1. Asgari Declaration, # 4 Exhibit 2. Jan. 29, 2017 Order, # 5 Exhibit 3. Kaufman Declaration)(Willett, Peter) (Attachment 1 replaced on 2/2/2017) (McDonagh, Christina). (Attachment 2 replaced on 2/2/2017) (McDonagh, Christina). (Additional attachment(s) added on 2/2/2017: # 6 Exhibit A) Restricted due to personal identifiers. (Pacho, Arnold). (Attachment 5 replaced on 2/2/2017) (Pacho, Arnold). Modified on 2/2/2017 (Pacho, Arnold). (Additional attachment(s) added on 2/2/2017: # 8 Exhibit A RE: Exhibit 1. Asgari Declaration) (adminn, ). (Attachment 3 replaced on 2/2/2017) (adminn, ).

Case 1:17-cv-10182-ADB Document 1-5 Filed 02/01/17 Page 1 of 15

DECLARATION OF NOAH J. KAUFMAN
I, Noah J. Kaufman, state and affirm the following:
1. I am an attorney duly licensed to practice law in the Commonwealth of Massachusetts. I
am associated with the law firm of Morgan, Lewis & Bockius LLP, which represents Dr.
Samira Asgari. The following facts have become known to me in the course of our
representation of Dr. Asgari.
2. I am informed and believe that Dr. Asgari is an Iranian national who holds an Iranian
passport. Dr. Asgari is a scientist and a medical researcher holding a doctorate degree
from the École Polytechnique Fédérale de Lausanne in Switzerland.
3. I am informed and believe that Dr. Asgari received a J-1 visa dated January 27, 2017 to
enter the United States in order to perform medical research at Brigham and Women’s
Hospital and Harvard Medical School in Boston, where she had been awarded a research
position devoted to finding a cure for tuberculosis. A true and accurate reproduction of
the identifying page of Dr. Asgari’s passport and the enclosed visa is attached hereto as
Exhibit A.
4. I am informed and believe that on Saturday morning, January 28, 2017, Dr. Asgari
attempted to board a Lufthansa Air Lines flight from Frankfurt, Germany to Boston,
Massachusetts. At the gate, Dr. Asgari was informed by a representative of the United
States Consulate in Germany that she was not permitted to board the flight on the basis of
the President’s executive order dated January 27, 2017, entitled “Protection of the Nation
From Foreign Terrorist Entry Into the United States.”
5. On Sunday, January 29, 2017, I became aware that in the matter of Tootkaboni v. Trump,
Case No. 1:17-cv-10154 (D. Mass.), the Honorable Allison D. Burroughs and the
Honorable Judith Gail Dein had issued a Temporary Restraining Order directing, inter
alia, that the President and certain other respondents “shall not . . . detain or remove . . .
holders of valid immigrant and non-immigrant visas . . . and other individuals from Iraq,
Syria, Iran, Sudan, Libya, Somalia and Yemen who, absent the Executive Order, would
be legally authorized to enter the United States” (the “Order”). The Order directed that
Customs and Border Protection “shall notify airlines that have flights arriving at Logan
Airport of this Order and the fact that individuals on these flights will not be detained or
returned solely on the basis of the Executive Order.”
6. I am informed and believe that on Monday, January 30, 2017, in reliance on the Order,
Dr. Asgari booked passage on a Swiss International Air Lines (“SWISS”) flight from
Zurich, Switzerland to Boston, Massachusetts. The flight, SWISS 52, was scheduled to
depart Zurich at 5:25 p.m. local time on Tuesday, January 31, 2017. A true and accurate
reproduction of Dr. Asgari’s ticket purchase confirmation and boarding pass is attached
hereto as Exhibit B.

Case 1:17-cv-10182-ADB Document 1-5 Filed 02/01/17 Page 2 of 15

7. I am informed and believe that on the morning of Tuesday, January 31, 2017, while
traveling to the Zurich airport, Dr. Asgari received a telephone call from a staff member
at SWISS informing her that she would not be permitted to board the flight. Dr. Asgari
promptly relayed this information to me.
8. Later on Tuesday, January 31, 2017, I spoke by telephone with a SWISS representative in
Zurich, who identified herself as Dominique Fehlmann, an in-house attorney at SWISS
with general responsibility for compliance with United States customs and immigration
matters. Ms. Fehlmann stated the following:
As required by United States laws and regulations, SWISS provided a passenger
manifest to United States customs and immigration officials for Flight 52, which
contained Dr. Asgari’s name.
At some point on Monday evening, January 30, 2017, or Tuesday, January 31,
2017, SWISS received a directive from Customs and Border Protection which
provided, inter alia, that Dr. Asgari should not be permitted to board the flight.
Customs and Border Protection informed SWISS that failure to comply with its
directive could result in fines of up to $50,000 and refusal of permission for Flight
52 to land in the United States.
9. Because Dr. Asgari booked passage on Flight 52 with SWISS on January 30, the
passenger manifest and directive described above must have been created after entry of,
and service upon the United States of the Order.
10. In our January 31, 2017 telephone conversation, Ms. Fehlmann stated to me that Customs
and Border Protection had directed SWISS not to provide a copy of its directive to any
third party.
11. I offered to provide Ms. Fehlmann with a copy of the Order. She responded that she
already had received a copy, but that SWISS had no choice but to comply with the
directive of Customs and Border Protection, and to refuse Dr. Asgari the right to board.
12. Ms. Fehlmann stated that she was not aware of any guidance or other communication
sent to SWISS by Customs and Border Protection regarding the Order. She stated further
that if SWISS had received any such communication, it likely would have been directed
to her attention.
13. I am informed and believe that Dr. Asgari proceeded to the airport in Zurich and
attempted to board Flight 52. When Dr. Asgari arrived at the gate, she was met by a
SWISS representative who identified herself as “Port.”
14. While Dr. Asgari was at the gate, I received a telephone call from Port. Port informed me
that she had in hand a copy of this Court’s Order, but that she could not allow Dr. Asgari
to board the flight in light of the Customs and Border Protection directive. Port informed
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Case 1:17-cv-10182-ADB Document 1-5 Filed 02/01/17 Page 3 of 15

me that the only circumstance under which Dr. Asgari would be allowed to board the
flight was if an employee of Customs and Border Protection could offer written
assurances that Dr. Asgari should be allowed to board and that SWISS would not be
liable for non-compliance with the Customs and Border Protection directive.
15. My colleagues and I attempted to obtain such written assurances from Customs and
Border Protection. My colleague Sabin Willett sent an urgent email to Attorneys Rayford
Farquhar, Ellen Souris, Keara Martin, and Katherine Shinners, a copy of which is
attached hereto as Exhibit C. We received no response until approximately five hours
later, at which point Attorney Willett received an email from Attorney Shinners stating
that “we [the Department of Justice] do not read the Court’s order to [allow Dr. Asgari to
travel to the United States].” A true and correct copy of Attorney Shinners’s email is
attached hereto as Exhibit D.
16. Dr. Asgari then telephoned to inform me that she had been unable to board, the gate had
closed, and the aircraft had departed.
17. I am informed and believe that, at the gate for Flight 52, Port had a printed copy of the
Customs and Border Protection directive regarding Dr. Asgari. Dr. Asgari was able to
take a photograph of the directive with her cellphone and she sent that photograph to me
by email. However, I note that the photographed document is directed to SWISS, and
directs the air carrier not to disclose the document. Its contents appear to be highly
material to provisions of the Order. I will provide the photograph to the Court or the
parties, as the Court directs.

[Signature page follows]

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Case 1:17-cv-10182-ADB Document 1-5 Filed 02/01/17 Page 4 of 15

Case 1:17-cv-10182-ADB Document 1-5 Filed 02/01/17 Page 5 of 15

Exhibit B

Case 1:17-cv-10182-ADB Document 1-5 Filed 02/01/17 Page 6 of 15

Ticket
Travel Itinerary

Calling from Switzerland

0848 700 700

Calling from Zurich

[phone]

ASGARI/SAMIRAMS

Reservation number

24TBRL

Ticket number

7242304372371

Issued

30/1/2017

Issuer

SWISS.COM

Issue place

SWITZERLAND

Page

1 of 4

Flight

LX52

LX53

From

Zurich (ZRH)

Boston

Zurich
To

Boston (BOS)

Zurich

Logan Intl Arpt
Departure date

Departure time

31 January 2017

17:25

Latest check-in

Arrival date

Arrival time

31 January 2017

20:05

Check-in baggage

Hand baggage

1 piece, up to 50lb / 23kg
max size up to 62li / 158lcm

1 piece up to 18lb / 8kg ,
max size up to 46li / 118lcm

(width + depth + height)

(width + depth + height)

Travel class

Booking / Ticket Status

Economy (V)

Second Bag

07 February 2017

21:45

E

Case 1:17-cv-10182-ADB Document 1-5 Filed 02/01/17 Page 7 of 15

Receipt

ASGARI/SAMIRAMS

24TBRL
7242304372371

Grand total

799.00

Case 1:17-cv-10182-ADB Document 1-5 Filed 02/01/17 Page 8 of 15

Baggage provisions

ASGARI/SAMIRAMS

24TBRL
7242304372371

Quantity

Weight

Size

Quantity

Customer status

Price

Price

Weight

Size

Destination

SWISS First

SWISS Business

SWISS Economy * * *

Case 1:17-cv-10182-ADB Document 1-5 Filed 02/01/17 Page 9 of 15

Important information

ASGARI/SAMIRAMS

24TBRL
7242304372371

Case 1:17-cv-10182-ADB Document 1-5 Filed 02/01/17 Page 10 of 15

Passenger name: ASGARI/SAMIRAMS
E-ticket number: 724 2304 372 371-1

Y

Frequent flyer number:
Check-in sequence: 37

From Zurich (ZRH) to Boston (BOS
)

Flight LX52

Date

Departure

Booking class

G
ate

Boarding time

Seat

31 January, 2017

17:25

Economy Class (V)

N/A

16:25

39K

Please be at the departure gate at the boarding time stated. Otherwise, your seat may be re-assigned.

Baggage allowance
Baggage type

Quantity / Weight

Size

Free checked baggage for flights
operated by SWISS.

See E-Ticket terms and conditions for detailed baggage allowance.
Additional baggage allowance may apply for Frequent Flyers or if purchased separately.

Carry-on baggage for flights
operated by SWISS

max.

An item of baggage must not exceed

1 × 8 kg

55 × 40 × 23 cm

Travel information
Baggage drop-off
Please report with your baggage to

t he Baggage drop-off count er at Check-in 3 if arriving by t rain, ot herwise t o t he
Baggage drop-off count er in Check-in 1.
If you are travelling with hand baggage only, you may proceed directly to your departure gate.
Kindly consult our website for the latest check-in times of your departure airport: swiss.com/latest_checkin.
Dangerous goods
No dangerous goods are allowed in either checked baggage
or carry-on-baggage. For detailed information check
swiss.com/dangerousgoods.
Bringing liquids on board
In compliance with international security regulations, any
liquid items (including gels, pastes and similar) which are
carried into the aircraft cabin must be packed in individual
containers with a capacity of not more than 100 ml (1 dl).

Air passenger rights
If you are denied boarding or if your flight is cancelled or
delayed for at least two hours, ask at the check-in counter or
boarding gate for the text stating your rights, particularly
with regard to compensation and assistance. Regulation (EC
)
no. 261/2004.
Air transportation notice
For liability issues and other transport conditions, please
refer to the SWISS general conditions of carriage available at
any Swiss International Air Lines sales offi ce, or on
www.swiss.com.

Case 1:17-cv-10182-ADB Document 1-5 Filed 02/01/17 Page 11 of 15

Exhibit C

Case 1:17-cv-10182-ADB Document 1-5 Filed 02/01/17 Page 12 of 15
Kauf man, Noah J.
From:
Sent :
To:
Cc:
Subject :

Willett, P. Sabin
Tuesday, January 31, 2017 11:12 AM
[e-mail]; [e-mail]; [e-mail];
[e-mail]
Matthew Segal; Frost-Davies, Julia; Kaufman, Noah J.; [e-mail];
[e-mail]
MOST URGENT/ Asgari/ / no. 17-cv-10154, Tootkaboni et al. v. Trump et al.

Dear counsel –
Our client Ms. Asgari, who holds a J-1 visa and is within the scope of Judge Burroughs’ Sunday order, having
been ticketed to Logan on Saturday and turned away at the Frankfurt gate, is now at the Swiss gate in Zurich,
attempting to board a flight. Swiss needs your assurance that the flight has permission to land, and is advising
us that, after the Court’s order entered on Sunday, and in contravention of the order, it has been advised by CPB
that she is not permitted to board. Please ASAP contact Swiss in Zurich to confirm that Ms. Asgari may board
and the aircraft will be given permission to land at Logan without penalty.
Please confirm to the two Swiss CCs asap in writing that she has permission pursuant to paragraph D of
Judge Burroughs’ order issued Jan. 29, 2017, and that there will be no difficulties upon arrival.
Need asap, plane is now boarding.
Very truly yours,
SW

1

Case 1:17-cv-10182-ADB Document 1-5 Filed 02/01/17 Page 13 of 15

Exhibit D

Case 1:17-cv-10182-ADB Document 1-5 Filed 02/01/17 Page 14 of 15
Kauf man, Noah J.
From:
Sent :
To:
Cc:
Subject :

Shinners, Katherine J. (CIV) < [e-mail]>
Tuesday, January 31, 2017 3:58 PM
Willett, P. Sabin; Farquhar, Rayford (USAMA); Souris, Ellen (USAMA); Martin, Keara
(USAMA)8
Matthew Segal; Frost-Davies, Julia; Kaufman, Noah J.; [e-mail];
[e-mail]
RE: MOST URGENT/ Asgari/ / no. 17-cv-10154, Tootkaboni et al. v. Trump et al.

Mr. Willett,
Thank you for your email. We do not read the C
ourt’s order to require such action, but we have passed the information
along to CBP.
Katie S
hinners

Kath er in e Sh in n er s
Tr ial Attor n ey
United S
tates Department of Justice
Office of Immigration Litigation – District Court S
ection

Post Office Box 868 | Ben Franklin S
tation | Washington, DC 20044
202-598-8259 | 202-305-7000 |
[e-mail]

From: Willett, P. S
abin [mailto:[e-mail]]
Sent: Tuesday, January 31, 2017 11:17 AM
To: Farquhar, Rayford (US
AMA) <[e-mail]>; S
ouris, Ellen (US
AMA) <Ellen.S
[e-mail]>;
Martin, Keara (US
AMA)8 <[e-mail]>; S
hinners, Katherine J. (CIV) <[e-mail]
DOJ.GOV>
Cc: Matthew S
egal <MS
[e-mail]>; Frost-Davies, Julia <[e-mail]>; Kaufman, Noah J.
<[e-mail]>; [e-mail]; [e-mail]
Subject: RE: MOS URGENT/ Asgari/ / no. 17-cv-10154, Tootkaboni et al. v. Trump et al.
T
I am resending with corrected stationmanager email address.
S
abin Willett
Morgan, Lewis & Bockius LLP
One Federal S
treet | Boston, MA 02110-1726
Direct: +1.617.951.8775 | Main: +1.617.951.8000 | Fax: [phone]
[e-mail] | www.morganlewis.com
Assistant: Kristina M. Cherubin | +1.617.951.8432 | [e-mail]
Fr om : Willett, P. Sabin
Sent : Tuesday, January 31, 2017 11:12 AM
1

Case 1:17-cv-10182-ADB Document 1-5 Filed 02/01/17 Page 15 of 15
To: '[e-mail]'; '[e-mail]'; '[e-mail]'; '[e-mail]'
Cc: 'Matthew Segal'; Frost-Davies, Julia; Kaufman, Noah J.; '[e-mail]'; '[e-mail]'
Subj ect : MOST URGENT/ Asgari/ / no. 17-cv-10154, Tootkaboni et al. v. Trump et al.

Dear counsel –
Our client Ms. Asgari, who holds a J-1 visa and is within the scope of Judge Burroughs’ Sunday order, having
been ticketed to Logan on Saturday and turned away at the Frankfurt gate, is now at the Swiss gate in Zurich,
attempting to board a flight. Swiss needs your assurance that the flight has permission to land, and is advising
us that, after the Court’s order entered on Sunday, and in contravention of the order, it has been advised by CPB
that she is not permitted to board. Please ASAP contact Swiss in Zurich to confirm that Ms. Asgari may board
and the aircraft will be given permission to land at Logan without penalty.
Please confirm to the two Swiss CCs asap in writing that she has permission pursuant to paragraph D of
Judge Burroughs’ order issued Jan. 29, 2017, and that there will be no difficulties upon arrival.
Need asap, plane is now boarding.
Very truly yours,
SW
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