Amiri et al v. Department of Homeland Security, Secretary of et al

Filing 35

ORDER Granting 20 Motion to Dismiss in Part and Directing Supplemental Briefing. (Defendant's Supplemental Brief due by 2/28/2018; Plaintiff's Supplemental Response due by 3/14/2018.) Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

Loabat Amiri, Mohammed Amin Latif,
Farbod Latif,
Plaintiffs,
Case No. 17-cv-12188
v.
ing LemoJohn Kelly, Secretary, U.S. Department
Hon. Thomas L.
John Kelly, Secretary, U.S. Department
Hon. Thomas L. Ludington
of Homeland Security, in his official
Mag. Judge Patricia T. Morris
capacity; Rex W. Tillerson, Secretary
U.S. Department of State, in his official
Capacity; Acting Commissioner Kevin K.
McAleenan, Customs and Border Protection,
in his official capacity; Andrew McCabe,
Director, Federal Bureau of Investigations,
in his official capacity; Michael S. Rogers,
Director, National Security Agency, in
his official capacity; Nicholas J. Rasmussen,
Director, National Counter Terrorism Center,
in his official capacity; Dan Coats, Director of
Office of the Director of National Intelligence,
in his official capacity; Christopher M. Piehota,
Director, Terrorist Screening Center, in his
official capacity; Unidentified FBI Agents,
jointly and severally; Unidentified TSC agents,
jointly and severally, Unidentified CBP agents,
jointly and severally.
Defendants.
__________________________________________/
ORDER GRANTING MOTION TO DISMISS IN PART AND DIRECTING
SUPPLEMENTAL BRIEFING
On October 5, 2017, Plaintiffs Loabat Amiri (Amiri), her husband Mohamed Amin Latif
(Latif), and their son Farbod Latif (Farbod), filed an amended complaint challenging the denial

of Latif’s visa, and challenging Amiri and Latif’s placement on a terrorist watch list. ECF No. 1.
The amended complaint contains ten counts, alleging violations of the Immigration and
Nationality Act of 1965 (INA), the Administrative Procedure Act (APA), and various
constitutional provisions including Article 1 section 9 (Bill of Attainder) as well as amendments
1 (free exercise), 5 (equal protection, due process) and 6 (confrontation clause). The amended
complaint names 9 official capacity defendants who are the heads of various executive
departments and agencies including the Department of Homeland Security (DHS), the
Department of State (DOS), Customs and Border Protection (CBP), Federal Bureau of
Investigation (FBI), National Security Agency (NSA), National Counterterrorist Center (NCTC),
Office of the Director of National Intelligence (ODNI), and the Terrorist Screening Center
(TSC). The amended complaint also names unidentified agents of the FBI, TSC, and CBP.
Defendants moved to dismiss the amended complaint on October 19, 2017. ECF No. 20.
I.
A.
Plaintiff Dr. Loabat Amiri (Amiri) is an endocrinologist currently residing in Midland,
Michigan. She is a permanent resident of the United States. She is also a citizen of Great Britain
and a citizen and national of Iran. She is married to Plaintiff Mohammad Amin Latif (Latif), who
is a citizen and national of Great Britain, where he currently resides. Plaintiff Latif has been
designated as a Freeman of London, a Master of the Meridian Greenwich Lodge, and a Livery
Man of the City of London. Amiri and Latif have a 20 year old son, Plaintiff Farbod Latif
(Farbod), who is a United States citizen by birth currently residing in Midland. They also have a
10-year old daughter.

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In August 2006, Amiri entered the U.S. on an H-1B visa for a medical residency at Metro
Health Medical Center in Cleveland, Ohio. An H-1B is a visa issued to non-immigrants coming
to the U.S. temporarily to perform work in specialized fields. She later transferred to the Henry
Ford Health System in Michigan. Amiri’s family entered the U.S. under H-4 visas, issued to
immediate family members of H-1B visa holders. In early 2009 they requested and received visa
extensions and were fingerprinted and checked through various databases. Plaintiffs periodically
travelled to and from Europe without incident.
On April 6, 2010, Latif and Amiri appeared at the U.S. Consulate in Ottawa to receive
their H visas, because the visas in their respective passports had expired. Am. Compl. at 10, ECF
No. 19. Latif was ultimately granted entry into the U.S. on his British Passport for 90 days and
Amiri was paroled into the U.S. Id. at 11. They requested new visas. Amiri was issued a new
visa but Latif was not. Latif applied for parole with CBP, and was granted a 30 day parole. In
order to receive the parole, Latif was required to exit the U.S. and travel to Canada, then return to
the U.S.
On November 30, 2010, Latif applied for a new 30-day parole. CBP ran security checks
and located a record for Latif and Amiri on TECS, a database used by the CBP for border and
port of entry screening. Latif’s parole request was denied, and he was issued an expedited
removal at the Port Huron Port of Entry. Latif was detained for 30 days pending removal to
Great Britain. Latif has not returned to the U.S. since that date. Amiri’s employer filed an I-140
petition for Amiri as an alien professional with an advanced degree, which would allow her to
gain permanent residency. Amiri filed an application to adjust her status to permanent residency.
After one year with no response from DHS regarding the status of her application, Amiri filed a
mandamus action in this District, after which DHS granted her permanent residency.
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After Amiri was granted permanent residency, Latif submitted a derivative application
for permanent residency through the DOS and the U.S. Embassy in London. He was interviewed
by a consular official at the U.S. Embassy in London who determined that his application would
need administrative processing. Years later, after several follow up inquiries and the filing of a
mandamus action in this District, Latif received a letter from the U.S. Embassy in London stating
that Latif was found ineligible for an immigrant visa under section 212(a)(3)(B) of the INA, a
broad section covering terrorist activities, codified at 8 U.S.C. § 1182(a)(3)(B). Latif requested
additional information through DOS Legal Net service, but no additional information was
provided. He also requested reconsideration from the U.S. Embassy in London, but has not
received a response. Plaintiffs then commenced this action on July 5, 2017.
B.
i)
A helpful exposition of the visa application procedure was provided by the court in
Ibrahim:
A visa is permission for an alien, also known as a foreign national, to approach
the borders of the United States and ask to enter. There are several types of visas,
based primarily on the purpose of the alien’s travel to the United States. The
procedure for obtaining a visa is as follows. First, the alien applies for a visa by
submitting a visa application to a consular officer. The consular officer then
evaluates whether the individual is eligible for a visa and what type of visa he or
she may be eligible to receive. Second, the applicant makes an appointment for a
visa interview with a consular officer at the United States embassy or a consulate
abroad. Consular officers are employees of the Department of State who are
authorized to adjudicate visa applications overseas. Third, an interview is
conducted. Fourth, after the interview, the consular officer grants or denies the
application. Consular officers are required to refuse a visa application if the alien
has failed to demonstrate eligibility for the visa under the Immigration and
Nationality Act, including under 8 U.S.C. 1182.
Ibrahim v. Dep’t of Homeland Sec., 62 F. Supp. 3d 909, 920 (N.D. Cal. 2014).

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ii)
In making their determinations, consular officers draw upon information contained in
various terrorist watch lists. The federal government maintains a unified system of watch lists to
identify and list known or suspected terrorists. At the heart of this system is a centralized
database known as the Terrorist Screening Database (TSDB). CONG. RES. SERV. REP., THE
TERRORIST SCREENING DATABASE AND PREVENTING TERRORIST TRAVEL, https://fas.org/sgp/crs/
terror/R44678.pdf (last visited Jan. 11, 2018). It is managed by the Terrorist Screening Center
(TSC), a multi-agency organization administered by the FBI. Id.
The NCTC’s Terrorist Identities Datamart Environment (TIDE) is the “central repository
of the U.S. Government containing derogatory information about suspected international
terrorists.” CONG. RES. SERV. REP, TERRORIST DATABASES
DUE PROCESS AND HURDLES TO LITIGATION

AND THE NO FLY LIST: PROCEDURAL

at 2, https://fas.org/sgp/crs/homesec/R43730.pdf (last

visited Jan. 15, 2018). Agencies within the intelligence community (IC) evaluate intelligence
information, nominate individuals suspected of terrorism, and forward the information to the
NCTC.1 Id. Before they can be added to the TSDB, nominees are then vetted by analysts at the
NCTC, and finally undergo verification at the TSC. Id. at 2. “In contrast to TIDE (operated by
NCTC), the TSDB (operated by TSC) does not include ‘derogatory intelligence information.’
Instead, it consists of ‘sensitive but unclassified terrorist identity information consisting of
biographic identifying information such as name or date of birth or biometric information such as
photographs, iris scans, and fingerprints.” Id. at 2–3 (quoting Mohamed v. Holder, 995 F. Supp.
2d 520, 526 n.8 (E.D. Va. 2014)).
1

As of December 2013, according to the NCTC, about 1.1 million persons were included in TIDE, and about 25,000
were U.S. persons (citizens and lawful permanent residents). TIDE contains all of the government’s information
regarding persons “known or appropriately suspected to be or to have been involved in activities constituting, in
preparation for, in aid of, or related to terrorism (with the exception of purely domestic terrorism information).” Due
to the national security importance of this information, the contents of the database are classified. Id.
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To be entered in the TSDB, nominees must 1) meet the “reasonable suspicion
watchlisting standard” and 2) have sufficient identifiers.2 CONG. RES. SERV. REP., THE
TERRORIST SCREENING DATABASE at 5. Data from the TSDB is then exported to individual
screening databases maintained by screening agencies. The data is tailored to the particular
agency or departments’ legal authority and mission. Id at 7. These include the TECS (not an
acronym) system used by the CBP for border and port of entry screening; the No Fly List and
Selectee List used by the TSA for airline passenger screening; the Consular Lookout and Support
System (CLASS) used by the DOS for visa and passport screening; and the National Crime
Information Center (NCIC) used by the FBI for domestic law enforcement screening. Id. at 7–9.
Screeners at these agencies check the identity of the individuals they encounter. This screening
process may occur in person at ports of entry, or via written forms such as visa applications.
When a query produces a match to the agency’s database, this is known as an
“encounter” Id. at 9. The officers at individual screening agencies such as the CBP only have
access to limited identifying information available in the TSDB. Id. at 10. Thus, when a query
produces an “encounter”, the officer is directed to call the TSC 24-hour operations center for
further inquiry. Id. at 10. TSC analysts then search through additional datasets and intelligence
available only to them, and confirm or deny the possible match. Id. If a positive match is made or
if the analysis is inconclusive, the FBI’s Terrorist Screening Operations Unit then coordinates
how the government will respond, such as by deploying agents to interview or possibly
apprehend the subject. Id.
CBP inspectors use the TECS system that draws upon information from the TSDB to
perform background checks and admissibility reviews at ports of entry. Id. at 12. TECS accepts
2

From FY2009 to FY2013, approximately 1.6 million individuals were nominated to the TSDB and only about 1%
(roughly 14,000) were rejected. CONG. RES. SERV. REP., THE TERRORIST SCREENING DATABASE at 6.
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“nearly all” records from the TSDB. Id. at 8. The DOS uses the CLASS system which also draws
from the TSDB to perform background checks and screen all visa applicants. Id. The DOS also
uses the Consular Consolidated Database (CCD) to maintain biometric and biographic
information on visa applicants, who must submit to physical evaluations. A digital photograph
and a 10-finger scan are the standard biometric data collected by U.S. Embassies and Consulates.
Id. at 12.
DOS also relies on the Security Advisory Opinion (SAO) system. Under the SAO
system, consular officers abroad must refer selected visa cases for greater review by
Washington-based intelligence and law enforcement agencies. Id. Under the current interagency
review procedures, known as Visa Viper and Visa Condor, “if consular officials receive
information about a foreign national that causes concern,” they send the information either to the
NCTC or FBI for review. Id. at 13. After interagency review, a SAO is issued to the consular
officer who then decides whether to issue or refuse the visa application. Ibrahim, 62 F. Supp. 3d
at 920.
II.
A.
Plaintiffs challenge the denial of Latif’s immigrant visa application by the consular
official at the U.S. Embassy in London, and the fact that Amiri and Latif are listed in the TECS
database and TSDB.
In count 1, Plaintiffs allege that Defendants violated the First Amendment free exercise
and establishment clauses. They allege that “TECS, TSD[B], and other systems” contain
“unsubstantiated information based on the Plaintiffs’ imputed religious beliefs – Islam,” and not
any connection to terrorism. Am. Compl. at ¶ 68–70. Plaintiffs allege that the inadmissibility
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determination also discriminates in that it was made in reliance on TECS and other systems
which contained the unsubstantiated information. Id. at ¶ 69. Thus, Plaintiffs contend that
“Defendants engaged in the unconstitutional practice of profiling to make both the TECS
designation and the finding of inadmissibility.” Id. at ¶ 70.
Count 2 alleges that Defendants violated the equal protection clause of the Fifth
Amendment because the TECS designation is based on Plaintiffs’ Iranian national origin and
imputed religious beliefs. Id. at ¶ 77.
Count 3 alleges that Defendants violated Plaintiffs’ Fifth Amendment procedural due
process rights. Plaintiffs allege they were deprived of a constitutionally protected liberty interest
by being designated on TECS and by Latif being determined inadmissible. Id. at ¶ 81–86. They
also allege that they were not afforded the proper procedural protections, which include a predeprivation and post deprivation hearing. Specifically, they contend they should have been
notified of the TECS designation and inadmissibility determination, the factual basis for these
actions, and afforded a reasonable opportunity to contest the factual basis. Id. at ¶ 85–86. Count
4 alleges that Defendants violated Plaintiffs’ Fifth Amendment substantive due process rights by
infringing on the right to international travel: “The Plaintiffs are unable to travel internationally
because of the TECS designation placed on Amiri and Latif and the inadmissibility
determination placed on Latif.” Id. at ¶ 91. Plaintiffs also allege they have suffered stigma as a
result of being associated with terrorism.
Count 5 alleges that Defendants violated Article I Section 9’s prohibition on bills of
attainder because they singled out Plaintiffs and “stigmatized them as terrorists or supporting
terrorists and limiting their travel” thereby punishing them “without the benefit of judicial trial.”
Id. at ¶ 99–101.
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Count 6 alleges that Defendants violated the INA § 1152(a)(1)(A) by discriminating in
visa issuance based on nationality. Id. at ¶ 105. Count 7 alleges Defendants violated INA §
1151(b)(2)(A)(i) by failing to vindicate Plaintiffs’ statutory right to family unity. Id. at ¶ 111–
121.
Count 8 alleges that Defendants violated the APA because the inadmissibility and TECS
determinations discriminated based on nationality and imputed religion. Id. at ¶ 125. Thus,
Plaintiffs contend that:
Defendants’ actions in preventing Plaintiffs’ travel into the United States were
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law, in violation of APA § 706(2) (A); contrary to constitutional right, power,
privilege, or immunity, in violation of APA § 706(2) (B); in excess of statutory
jurisdiction, authority or limitations, or short of statutory right, in violation of
APA § 706(2) (C); and without observance of procedure required by law, in
violation of §706(2) (D)
Id. at ¶ 124.
Count 9 alleges that Defendants violated the confrontation clauses of the fifth and sixth
amendments by failing to provide Plaintiffs with the evidence against them or give them a
chance to rebut it. Id. at ¶ 129–132.
Count 10 alleges Defendants violated the Fifth Amendment substantive due process
clause by denying Plaintiffs the right to familial association. Id. at ¶ 133–140.
Plaintiffs request that the Court order Defendants to: a) provide an explanation for the
inadmissibility determination; b) provide an explanation for the TECS designation; c) provide
the Plaintiffs with the agency and person responsible for making these determinations; d) “to
process application if evidence is lacking or determinations are made in bad faith.” Plaintiffs also
seek actual damages, punitive damages, and attorney fees. Id. at 33–34.

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B.
In their motion to dismiss, Defendants raise three primary arguments. First, Defendants
argue that the doctrine of consular non-reviewability precludes the Court from reviewing the
consular officers’ decision to deny Latif’s visa because 1) the consular officer’s citation to 8
U.S.C. § 1182 (a)(3)(B) (terrorist activities) constitutes a facially legitimate, bonafide
justification for a visa denial under Din, and 2) Plaintiffs have not alleged with particularity that
the consular officer’s decision was made in bad faith. Mot. Dismiss at 5–7.
Second, Defendants argue that Plaintiffs lack standing to challenge the denial of the visa.
Defendants contend that Latif lacks standing because an unadmitted, nonresident alien has no
constitutional right to enter the U.S.. Id. at 8. Defendants contend Amiri lacks standing because
the denial of Latif’s visa application did not deprive her of a constitutionally protected liberty
interest. Defendants explain that the visa denial did not infringe on her right to marry and that
she has no constitutional right to have her spouse present in this country. Id. at 9. Defendants
contend the same reasoning should apply to an adult child seeking review of the denial of a visa.
Id.
Third, Defendants assert that Plaintiffs have failed to state a claim for a constitutional or
statutory violation. Specifically, Defendants contend Plaintiffs fail to state a claim under the
APA (count 8) because the only final agency action challenged is the visa denial which is barred
by consular non-reviewability. Id. at 16–17. Defendants contend Plaintiffs’ claims under the first
and fifth amendments (Counts 1, 2, 3, 4, 10) fail to state a claim because Plaintiffs have not pled
with particularity: that they were prevented from freely exercising their religion (count 1); that
they were treated differently than others similarly situated (count 2); that they were deprived of
any constitutionally protected liberty interest (count 3, 4, 10); or that they have been denied the
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right to travel anywhere but the United States (count 4). Id. at 13, 17–22. Defendants argue that
the sixth amendment confrontation clause claim (count 6) is inapplicable as Plaintiffs are not
criminal defendants.
Defendants also contend that Plaintiffs fail to allege any violations of the INA (Counts 6
and 7) because the INA’s purported goal of family unity does not give rise to any legal rights or
obligations. Id. at 23. Defendants assert that the bill of attainder (count 5) is inapplicable because
no legislative action is at issue. Id. Finally, Defendants note that the amended complaint
withdrew Plaintiffs’ Bivens claims, and Defendants assert that Plaintiffs have identified no other
basis to recover monetary damages. Id. at 24.
III.
Four issues must be addressed: 1) whether the doctrine of consular non-reviewability bars
the Court from reviewing the visa denial; 2) whether Plaintiffs have standing to pursue their
claims; 3) whether Plaintiff Latif has a right to assert constitutional or statutory claims; 4)
whether Plaintiffs have stated a claim for constitutional or statutory violations; 5) whether
Plaintiffs were required to exhaust administrative remedies by availing themselves of the DHS
Traveler Redress Inquiry Program (TRIP) prior to initiating this case.
A.
i)
The Supreme Court has “long recognized the power to expel or exclude aliens as a
fundamental sovereign attribute exercised by the Government’s political departments largely
immune from judicial control.” Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016)
(citing Fiallo v. Bell, 430 U.S. 787 (1977)). Congress has plenary power to make rules
circumscribing the conditions under which aliens may enter our country. Kleindienst v. Mandel,
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408 U.S. 753 (1972). When congress delegates this plenary power to the Executive Branch, as it
did in the case of visa processing, the decisions of the Executive Branch are also largely immune
from judicial review. Id.
A limited exception to the doctrine of consular non-reviewability exists where the denial
of a visa implicates the constitutional rights of America citizens. Cardenas, 826 F.3d at 1169.
This exception traces its roots to the seminal case of Kleindienst v. Mandel, 408 U.S. 753 (1972).
Mandel was a Belgian journalist invited to speak at several American Universities. Joined by
several Professors who invited him to speak, Mandel brought an action to compel the Attorney
General to grant him a temporary non-immigrant visa after he was found ineligible under the
INA section 212(a)(28)(D) which barred those who advocate communism. Id. at 753. The Court
noted that “Mandel personally, as an unadmitted and nonresident alien, had no constitutional
right of entry to this country as a nonimmigrant or otherwise.” Id. at 762. The Court found,
however, that the denial of the visa implicated the first amendment rights of the Professors. Id at
765.
This did not end the inquiry, as the Court then articulated the circumstances under which
the denial of a visa could be challenged. The Court noted that Congress had delegated to the
Executive Branch its plenary power to exclude aliens and prescribe the conditions for their entry
into the U.S. Id. at 766. The Court held that “when the Executive exercises this power negatively
on the basis of a facially legitimate and bona fide reason, the courts will neither look beyond the
exercise of that discretion, nor test it by balancing its justification against the First Amendment
interest of those who seek personal communication with the applicant.” Id. at 770.
In 2015, the Supreme Court further elaborated on this doctrine in Kerry v. Din, 135 S. Ct.
2128 (2015). In Din, a U.S. Citizen brought a due process challenge to the adequacy of the
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reasoning offered by a consular official in denying the visa application of her husband, a citizen
of Afghanistan. The consular official had informed her that her husband was inadmissible based
on the “terrorist activities” bar of INA section 1182(a)(3)(B). Id. at 2129. The district court
dismissed the action based on consular nonreviewability, and the Ninth Circuit reversed. The
Supreme Court reversed and remanded. Writing for the plurality, Justice Scalia concluded that,
“to the extent she received any explanation for the Government’s decision, this was more than
the Due Process Clause required.” Id. at 2138.
Justice Kennedy concurred in the judgment, joined by Justice Alito. Id. at 2139. Justice
Kennedy noted that “absent an affirmative showing of bad faith on the part of the consular
officer who denied Bereshak a visa – which Din has not plausibly alleged with sufficient
particularity – Mandel instructs us not to ‘look behind’ the Government’s exclusion of Berashk
for additional factual details beyond what is its express reliance on § 1182(a)(3)(B)
encompassed.” Id. at 2141. Justice Kennedy further noted that the consular official was not
required to point to a more specific provision within § 1182(a)(3)(B), as the statute expressly
refrains from imposing such a requirement. Id. Thus, Justice Kennedy concluded that, even
assuming Din had a protected liberty interest in her alien husband’s visa application (which was
not decided), “the Government satisfied any obligation it might have had to provide Din with a
facially legitimate and bona fide reason for its action when it provided notice that her husband
was denied admission to the country under § 1182(a)(3)(B). By requiring the government to
provide more, the Court of Appeals erred.” Id.
Though no opinion garnered majority support, Justice Kennedy’s articulation controls the
application of the doctrine of consular nonreviewability to a consular official’s denial of a visa
on § 1182(a)(3)(B) grounds. Cardenas v. United States, 826 F.3d 1164, 1171 (9th Cir. 2016)
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(adopting Justice Kennedy’s concurrence and noting that “[w]hen a fragmented Court decides a
case and no single rationale explaining the result enjoys the assent of five Justices, the holding of
the Court may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds.”); see also Marks v. United States, 430 U.S. 188 (1977).
The Din plurality concluded that any explanation furnished by the government was more than
due process required. Justice Kennedy’s concurrence offered a narrower articulation: that the
consular official’s citation to the “terrorist activities” provision (§ 1182(a)(3)(B)) was sufficient
and, absent a particularized allegation of bad faith, a court cannot look beyond that explanation.
Justice Kennedy’s articulation of the relevant standard necessarily has the approval of the
plurality, which offered a broader standard. Thus, Justice Kennedy’s articulation of the “facially
legitimate and bona fide” standard is the only one garnering support of five justices, and is
therefore binding precedent.
The facially legitimate and bona fide reason test has two components. To satisfy facial
legitimacy, the consular officer must deny the visa under a “valid statute of inadmissibility.”
Cardenas, 826 F.3d at 1172 (9th Cir. 2016) (citing Din, 135 S. Ct. at 2140 (consular officer’s
citation to § 1182(a)(3)(B) “suffices to show that the denial rested on a determination that Din’s
husband did not satisfy the statute’s requirements” and “the Government’s decision to exclude an
alien it determines does not satisfy one or more of [the statutory conditions for entry] is facially
legitimate under Mandel”)). To satisfy the “bona fide” requirement, the statute cited by the
consular officer must “specif[y] discrete factual predicates the consular officer must find to exist
before denying a visa” or there must be a fact in the record that “provides at least a facial
connection to” the statutory ground of inadmissibility. Id.

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ii)
Here, Latif, as an unadmitted nonresident alien, has no constitutional right of entry into
this country. Mandel, 408 U.S. at 762. Even assuming that Farbod and/or Amiri have a
constitutionally protected liberty interest implicated by the denial of Latif’s visa,3 the consular
official satisfied any process that was due. “The U.S. Embassy in London issued a letter stating
that Latif [had] been found ineligible to receive an immigrant visa under Section 212(a)(3)(B)4 of
the INA.” Am. Compl. at ¶ 50. Under Din, this is a facially legitimate and bona fide reason to
deny the application. Din, 135 S.Ct. at 2141. The Court cannot look beyond that reason without a
particularized allegation of bad faith. Plaintiffs have made no such allegation here. Thus, the
doctrine of consular non-reviewability mandates dismissal of this claim.
Plaintiffs make two primary arguments as to why their challenge to the visa denial should
be allowed to proceed: 1) that the doctrine of consular nonreviewability is inapplicable,5 and 2)
that, even if it is applicable, Plaintiffs have alleged bad faith by the consular official.
a.
With respect to the first argument, Plaintiffs assert that “[t]he Defendants’ reliance on
Kerry v. Din is misplaced.” Resp. at 4. Plaintiffs attempt to distinguish the facts of this case from
Kerry v. Din by explaining that “A determination of inadmissibility based on INA § 212(a)(3)(B)
is not made by a consular officer of the U.S. Department of State (DOS).” Id. Plaintiffs then
3
In Din, the Court assumed without deciding that a citizen has a constitutionally protected liberty interest implicated
by the denial of a visa to her non-citizen spouse. Id. at 2140. The Court found that there was no reason to decide
whether she had a protected liberty interest, as due process was satisfied. Similarly here, it is unnecessary to decide
whether Farbod (a citizen, and Latif’s son) and/or Amiri (Latif’s permanent resident wife) have a protected liberty
interest.
4
Codified at 8 U.S.C. § 1182(a)(3)(B).
5
Plaintiffs also contend that the doctrine of consular nonreviewability is inapposite because Plaintiffs “are not
asking the court to second guess a consular officer’s determinations . . .” To the contrary, the amended complaint
challenges the inadmissibility determination throughout, and specifically requests the Court to “Order the
Defendants to provide the reason or an explanation of Latif’s inadmissibility determination at a minimum in camera
or in a summary” and to “Order Defendants DOS and DHS to process application if evidence is lacking or
determinations are made in bad faith.” Am. Compl. at 33.
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engage in a lengthy exposition of the legislative allocation of authority over the visa processing
system.6 The main thesis of this exposition is that “INA 212(a)(3)(B) visa denials bear no
resemblance to the traditional exercise of consular discretion because the real decision-making in
these cases has in effect been ceded to the databases and watch listing process, in which
government

agents

other

than

consular

officers

determine

inadmissibility

under

INA§2[12](a)(3)(B). Therefore, the doctrine of consular nonreviewability is not applicable to
this case.” Id. at 7–8.
Even if Plaintiffs were correct that visa denials pursuant to INA 212(a)(3)(B) are sui
generis, this does not in any way explain how Din can be distinguished from the instant case,
because Din itself involved a visa denial under INA 212(a)(3)(B).7 The unstated argument
Plaintiffs are making is that the Supreme Court erred when it applied the doctrine of consular
nonreviewability to visa denials under 212(a)(3)(B), as these particular types of visa denials
involve no exercise of consular discretion. Irrespective of the wisdom of the Din decision, its
holding is binding on this Court.
Plaintiff makes one meaningful attempt at distinguishing Din, noting that it was
undisputed that the visa applicant in Din worked for the Taliban. Indeed, Justice Kennedy’s
concurrence explicitly recognized that Din admitted her husband worked for the Taliban. Din,
135 S.Ct. at 2141. Justice Kennedy further explained that the applicant’s employment at the
Taliban “even if itself insufficient to support exclusion, provides at least a facial connection to
terrorist activity.” Id. However, the Court did not impose a requirement that there must be a fact
6

In their supplemental response, Plaintiffs also furnished “a copy of a visa in a passport as evidence of their
argument that it is not the U.S. consulates that controls the issuance of a visa or other document of admission to the
U.S. but rather, it is the Defendant Department of Homeland Security . . . that instructs the U.S. consulates if a visa
or any other entry document should be issued to a non U.S. citizen to enter the United States.” Mot. at PGID 303304, ECF No. 30. For the same reasons provided herein, this additional document has no effect on the analysis.
7
The Din opinion contains no reference to “INA 212(a)(3)(B).” The reason for this is that the Court chose to cite the
corresponding provision in the U.S. Code, namely 8 U.S.C. § 1182(a)(3)(B).
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in the record providing a facial connection to the statutory ground for inadmissibility. A court
need not find such factual support in the record where the consular officer cited to a statutory
provision that itself “specifies discrete factual predicates the consular officer must find to exist
before denying a visa,” such as § 1182(a)(3)(B). Id.; Cardenas, 826 F.3d at 1172 (noting that the
consular officer must either “cite an admissibility statute that specifies discrete factual predicates
the consular officer must find to exist before denying a visa or there must be a fact in the record
that provides at least a facial connection to the statutory ground of inadmissibility”) (emphasis
added) (internal quotation marks omitted). The fact that the consular official cited to the statute
implies that he found one of the discrete factual predicates existed in that particular case, thereby
satisfying the “bona fide” requirement. Cardenas, 826 F. 3d at 1171.
The Din Court’s discussion distinguishing the facts of Mandel is informative:
The Government’s citation of § 1182(a)(3)(B) also indicates it relied upon a bona
fide factual basis for denying a visa to Berashk. Din claims due process requires
she be provided with the facts underlying this determination,
arguing Mandel required a similar factual basis. It is true the Attorney General
there disclosed the facts motivating his decision to deny Dr. Mandel a waiver, and
that the Court cited those facts as demonstrating “the Attorney General validly
exercised the plenary power that Congress delegated to the Executive.”. But
unlike the waiver provision at issue in Mandel, which granted the Attorney
General nearly unbridled discretion, § 1182(a)(3)(B) specifies discrete factual
predicates the consular officer must find to exist before denying a visa. Din,
moreover, admits in her Complaint that Berashk worked for the Taliban
government, which, even if itself insufficient to support exclusion, provides at
least a facial connection to terrorist activity. Absent an affirmative showing of bad
faith on the part of the consular officer who denied Berashk a visa—which Din
has not plausibly alleged with sufficient particularity—Mandel instructs us not to
look behind the Government’s exclusion of Berashk for additional factual details
beyond what its express reliance on § 1182(a)(3)(B) encompassed. The
Government, furthermore, was not required, as Din claims, to point to a more
specific provision within § 1182(a)(3)(B). To be sure, the statutory provision the
consular officer cited covers a broad range of conduct. And Din perhaps more
easily could mount a challenge to her husband's visa denial if she knew the
specific subsection on which the consular officer relied. Congress understood this
problem, however. The statute generally requires the Government to provide an
alien denied a visa with the “specific provision or provisions of law under which
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the alien is inadmissible,” § 1182(b)(1); but this notice requirement does not
apply when, as in this case, a visa application is denied due to terrorism or
national security concerns. § 1182(b)(3). Notably, the Government is not
prohibited from offering more details when it sees fit, but the statute expressly
refrains from requiring it to do so.
Din, 135 S. Ct. at 2140–41 (emphasis added) (internal quotations omitted). Thus, it is apparent
that the additional factual detail contained in the record in Din (undisputed Taliban affiliation)
was not necessary for the Court to reach its conclusion that due process was satisfied.
Notably, a recent decision from the Seventh Circuit provides some support for the
argument that visa denials pursuant to § 1182(a)(3)(B) ought to be supported by additional
factual details. In Hazama, the court found that the consular officer’s denial of a visa application
on § 1182(a)(3)(B) grounds was facially legitimate and bona fide where it was undisputed that
the applicant had thrown rocks at Israeli soldiers when he was 13 years old. Hazama v. Tillerson,
851 F.3d 706, 709 (7th Cir. 2017). The court observed that “all we can do is to look at the face of
the decision, see if the officer cited a proper ground under the statute, and ensure that no other
applicable constitutional limitations are violated. Once that is done, if the undisputed record
includes facts that would support that ground, our task is over.” Id. (emphasis added). To the
extent Hazama can be read as requiring factual support in addition to the consular officer’s
citation to § 1182(a)(3)(B), this Court declines to adopt that requirement, as it is inconsistent
with the express holding of Din. The interpretation provided by the Ninth Circuit in Cardenas, as
set forth above, accords with the holding of Din.
Notably, after observing the undisputed fact that the applicant was employed with the
Taliban, Justice Kennedy expressly refuted any notion that a consular official’s decision must be
supported by additional facts, such as Taliban affiliation. Din, 135 S. Ct. at 2141. Justice
Kennedy noted that a Court may not “look behind” what the government’s “express reliance on §
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1182(a)(3)(B) encompassed.” Id. He further stated that, although “the Government is not
prohibited from offering more details when it sees fit” it is not required to do so, nor is it even
required “to point to a more specific provision within § 1182(a)(3)(B).” Id. If the consular officer
need not support his decision with additional factual details, it would be incongruous to say that
a reviewing court must find additional factual details in the record to support the consular
officer’s decision.
In sum, Din is directly controlling here. Section 1182(a)(3)(B) is a valid inadmissability
statute that establishes “specific criteria for determining terrorism related inadmissibility.” Din,
135 S. Ct. at 2141. Thus, a citation to § 1182(a)(3)(B) is a facially legitimate reason to deny a
visa application. Id. It is also a bona fide reason to deny a visa application, as § 1182(a)(3)(B)
“specifies discrete factual predicates the consular officer must find to exist before denying a
visa.” Id. The consular officer’s citation to the statute implies that he found at least some of those
discrete factual predicates existed in this case. See id.; Cardenas 826 F.3d at 1171. This is true
notwithstanding the fact that § 1182(a)(3)(B) contains many subsections covering a “broad range
of conduct.” Id. Thus, the U.S. Embassy letter to Latif furnished a facially legitimate, bona fide
reason for the visa denial by citing to § 1182(a)(3)(B). This Court cannot probe beyond that
reason as Plaintiffs have made no particularized allegation of bad faith.
b.
Next, Plaintiffs argue that, if the doctrine of consular non-reviewability applies, they have
made a particularized allegation of bad faith by the consular official. Plaintiffs contend “profiling
based on imputed religion and/or national origin is prohibited by U.S. law and clearly shows bad
faith.” Resp. at 15. Assuming that this allegation constitutes a particularized allegation of bad

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faith,8 Plaintiffs still do not allege bad faith on the part of the consular official, but rather allege
that the profiling occurred by the agencies responsible for the watch list.
The amended complaint avers: “The Unidentified FBI Agents are responsible for
providing information to the TSC and the TECS which result in the inadmissibility
determinations and designations as national security threats.” Am. Compl. at ¶ 24. The amended
complaint further avers: “The inadmissibility determination by Defendants discriminates against
Plaintiffs because it is based on TECS, TSD[B] and other systems which contained the
unsubstantiated information based on the Plaintiffs’ imputed religious beliefs – Islam.” Id. at ¶
69 (emphasis added). Finally, Plaintiffs allege that “Security checks are conducted and if any
negative information is found, the person is determined to be inadmissible and the U.S.
Consulate will request that the applicant file a waiver. No waiver exists for any of the terrorism
grounds of inadmissibility.” Id. at 57.
Thus, Plaintiffs contend the data contained in the TSDB, TECS, and related databases are
compiled in bad faith. They contend they are listed in these databases not due to any connection
to terrorist activity, but solely due to profiling based on their national origin and imputed
religion. However, this is not an allegation of bad faith by the consular official, but an attack on
the reliability of the information consular officials are required to draw upon in making their
determinations. Indeed, Plaintiffs allege that the consular official exercises no discretion of his
own, but merely runs a security check and issues a denial if any negative information is found in
a database.
In sum, the allegations, accepted as true, compel the conclusion that the consular official
did not act in bad faith, but did precisely what was directed by his job duties and the applicable

8

Notably, Din furnishes no guidance on what such an allegation would look like.
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law. Accordingly, there is no basis for the court to probe past the reason offered by the official.
The reason that he provided satisfied due process. The Court cannot order the official to provide
a more detailed explanation for the visa denial (to review in camera or otherwise), nor can the
Court reverse the decision, or engage in any further review of Plaintiffs challenges to the
inadmissibility determination by the U.S. Embassy and the denial of Latif’s visa. Accordingly,
the complaint will be dismissed as to those challenges.
B.
Plaintiffs also allege that they are listed in the TECS database and the Terrorist Screening
Database (TSDB or TSD). Am. Compl. at 26, 43, 69. They contend that the TECS designation
has no basis in fact linking them to terrorism, is based solely on their national origin and imputed
religious belief, and that they were given no notice of the reason for the designation or an
opportunity to contest the factual basis behind it. Id. at 68, 69, 77, 84–86, 95, 101. As a result,
they claim that Defendants have violated their first amendment rights under the free exercise and
establishment clauses (count 1); and their fifth amendment rights to equal protection, procedural
due process, international travel, and familial association (counts 2, 3, 4, 10). They also assert
violations of the INA (counts 6 and 7), APA (count 8), and the prohibition on Bills of Attainder
(count 5). Plaintiffs ask the Court to order Defendants to furnish an explanation for the TECS
designation and the identity of the agency and individual responsible for the TECS designation.
Id. at 33. They also seek actual damages, punitive damages, and attorney fees.
Notably, Defendants direct very little attention to Plaintiffs’ challenge to their placement
in the TECS database and TSDB. It is apparent that Defendants do not regard that challenge as
distinct from Plaintiffs’ challenge to the visa denial. Rather, Defendants view the challenge to the

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TECS designation as an attempt to circumvent the doctrine of consular nonreviewability. Mot.
Dismiss at 14.
In short, Defendants identify no reason why the doctrine of consular nonreviewability
should compel dismissal of the claims challenging the TECS designation. As a practical matter,
the motivation behind the challenge to the TECS designation may well be an attempt at an end
run around the doctrine of consular nonreviewability. However, Plaintiffs’ subjective
motivations are not at issue.
The motion to dismiss offers three additional bases for dismissal other than consular nonreviewability. Some of these bases are sufficient to warrant dismissal of certain counts, whereas
others will require supplemental briefing.
i)
First, Defendants argue Plaintiffs lack standing to challenge the visa refusal. “The
irreducible constitutional minimum of standing contains three elements.” Lujan v. Defenders of
Wildlife, 504 U.S. 555 (1992). First, Plaintiff must have suffered an injury in fact – an “invasion
of a legally protected interest” which is “concrete and particularized” and not “conjectural or
hypothetical.” Id. at 561. Second, the injury must be fairly traceable to the conduct complained
of. Id. Third, “it must be likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Id.
Defendants argue Latif lacks standing because “as an unadmitted, nonresident alien, Mr.
Latif has no constitutional right to enter the country.” Id. at 15. They argue that Amiri and
Farbod lack standing because the denial of a visa to a relative does not implicate a
constitutionally protected liberty interest. Notably, Defendants do not explicitly address any of

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the three standing requirements set forth in Lujan, though they implicitly argue that injury in fact
is lacking, as a visa denial deprives Plaintiffs of no constitutionally protected interest.
Furthermore, Defendants focus solely on whether the Plaintiffs have standing to
challenge the visa denial, without addressing whether they have standing to challenge their
inclusion on a terrorist database. The latter question has been explored in this circuit fairly
recently. See Shearson v. Holder, 725 F.3d 588, 591 (6th Cir. 2013) (finding that citizen had
standing to raise fifth amendment procedural due process challenge to her designation on the
TSDB where she was detained by CBP officials at a port of entry, but holding that citizen failed
to exhaust administrative remedies by failing to avail herself of DHS’s Traveler Redress Inquiry
Program (TRIP)).
The Ninth Circuit has also explored this question in the context of an alien’s challenge to
her inclusion on the No-Fly list where her visa application was also denied. Ibrahim v. Dep’t of
Homeland Sec., 669 F.3d 983 (9th Cir. 2012). The court noted that “the government
mischaracterizes Ibrahim’s injury by focusing solely on her inability to return to the United
States.” Id. at 993. The court further explained that Ibrahim suffered distinct injuries due to her
presence on the No-Fly list: “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 injuries are unrelated to her lack of a visa.” Id.
The court also noted that:
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. But it is a reasonable inference that removal of her 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 likely to grant her a
visa, given that it has relied on her alleged connection to terrorism as the basis for
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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, plaintiff need not demonstrate that there is a guarantee that their injuries
will be redressed by a favorable decision . . . Plaintiffs must show only that a
favorable decision is likely to redress their injuries, not that a favorable decision
will inevitably redress their injuries . . . 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 redressibility. Ibrahim is not
required to solve all roadblocks simultaneously and is entitled to tackle one
roadblock at a time.
Id. (internal quotations omitted) (emphasis in original).
As the parties have not yet addressed this issue, supplemental briefing will be directed.
ii)
Defendants’ argument that Latif lacks standing also raises a related but distinct question,
namely whether Latif has a right to sue. That is, whether Latif, as an unadmitted non-resident
alien, has a right to assert constitutional or statutory claims. However, Defendants only addressed
whether Latif has a constitutional right to enter the U.S. They did not address whether he may
assert a constitutional or statutory challenge to his designation on a terrorist watchlist,
irrespective of his right to enter the U.S.
While it is well established that aliens legally within the United States may challenge the
constitutionality of federal and state actions, the right of a non-resident alien to do so is less
clear. The Supreme Court has gradually developed a framework for addressing this issue. In
Eisentrager, the Court noted that an alien “is accorded a generous and ascending scale of rights
as he increases his identity with our society.” Johnson v. Eisentrager, 339 U.S. 763 (1950). In
Boumediene, the Court stated that an alien’s right to assert constitutional claims is based on
“objective factors and practical concerns” and not based on formalism. Boumediene v. Bush, 553
U.S. 723 (2008).

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In Verdugo, the Court stated that “aliens receive constitutional protections when they
have come within the territory of the United States and developed substantial connections with
this country.” United States v. Verdugo-Urquidez, 494 U.S. 259 (1990); see also Ibrahim, 669
F.3d 983 at 997 (holding that alien had established a “significant voluntary connection” with the
U.S. for the purpose of asserting constitutional claims where she spent four years at Stanford
University pursuing a Ph.D and voluntarily departed to attend a conference with the intention of
returning to the U.S. afterward).
As the parties have not yet addressed this issue, supplemental briefing will be directed.
iii)
Lastly, Defendants address the specific counts of the complaint, arguing that they do not
state claims for relief. A pleading fails to state a claim under Rule 12(b)(6) if it does not contain
allegations that support recovery under any recognizable legal theory. Ashcroft v. Iqbal, 556 U.S.
662, 678, (2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the
non-movant’s favor and accepts the allegations of facts therein as true. See Lambert v. Hartman,
517 F.3d 433, 439 (6th Cir. 2008). The pleader need not have provided “detailed factual
allegations” to survive dismissal, but the “obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). In essence, the pleading “must contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face” and “the tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at
678-79 (quotations and citation omitted).

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Plaintiffs have failed to state a claim for a violation of the establishment clause of the first
amendment, as they have identified no government action with a non-secular purpose that has a
principal effect of advancing or inhibiting religion, or that results in excessive government
entanglement with religion. See Harkness v. Sec'y of Navy, 858 F.3d 437, 447 (6th Cir. 2017)
(citing Lemon v. Kurtzman, 403 U.S. 602, 613 (1971)). Plaintiffs also fail to state a claim under
the free exercise clause. They do not allege that they have been compelled to engage in a practice
that violates their religious convictions, refrain from doing an act required by their religious
convictions, or affirm or deny a belief contrary to their religious convictions. Indeed, Plaintiffs
do not claim to be Muslim, but rather accuse Defendants of presuming they are Muslim. Am.
Compl. at ¶ 68–70. Accordingly, count 1 will be dismissed.
Plaintiffs also fail to state an equal protection claim as they fail to allege that they have
been treated differently than similarly situated individuals of a different nationality. For instance,
Plaintiffs make no allegation that the government only maintains records on Iranian nationals.
Nor do they allege that they are treated differently based on their religion, as they do not claim to
be Muslim. Accordingly, count 2 will be dismissed.
Plaintiffs have failed to state a claim for a violation of the Article I section 9 prohibition
on bills of attainder as they do not identify any legislative act that “determines guilt and inflicts
punishment upon an identifiable individual without provision of the protections of a judicial
trial.” Zilich v. Longo, 34 F.3d 359, 362 (6th Cir. 1994). Accordingly, count 5 will be dismissed.
Plaintiffs have partially withdrawn count 9, which asserts violations of the “confrontation
clause of the fifth and sixth amendment.” They have withdrawn their sixth amendment
confrontation clause claim, but maintain that the due process clause of the Fifth Amendment
gives them a right to confront the evidence against them. Resp. at 22. The latter claim is entirely
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duplicative of count 3, and is not a confrontation clause claim. Thus, count 9 will be dismissed in
its entirety.
Plaintiffs fail to state a claim for a violation of the INA because the only violations
alleged relate to the denial of Latif’s visa application, which will be dismissed for the reasons
stated above. To the extent count 7 can be read as alleging that the TECS designation violates the
INA, count 7 still fails to state a claim. Count 7 merely identifies a purported legislative purpose
of the INA, namely family unity, and argues that Defendants have not acted in furtherance of that
legislative purpose. Accordingly, counts 6 and 7 will be dismissed.
The parties have not adequately briefed whether counts 3 (procedural due process), 4
(right to travel), 8 (APA) and 10 (right to familial association) state a claim for relief in light of
the challenge to the TECS designation, but rather focus on the visa denial.
Accordingly, supplemental briefing will be directed. The supplemental briefing should
address, at a minimum, 1) whether Plaintiffs have standing to challenge Amiri and Latif’s
alleged inclusion on the TECS database and the TSDB and to seek an explanation for the
designation, 2) whether Plaintiff Latif, as an unadmitted non-resident alien, has a right to assert a
constitutional or statutory challenge to his alleged inclusion on the TECS database and TSDB
and seek an explanation for the designation, 3) whether Plaintiffs have stated a claim for relief
under counts 3, 4, 8 and 10, and 4) whether Plaintiffs were required to exhaust administrative
remedies by availing themselves of the DHS Traveler Redress Inquiry Program (TRIP) prior to
initiating this case (See Shearson v. Holder, 725 F.3d 588, 591 (6th Cir. 2013) (holding that
citizen failed to exhaust administrative remedies by failing to avail herself of DHS’s Traveler
Redress Inquiry Program (TRIP)); but see Mohamed v. Holder, 995 F. Supp. 2d 520 (E.D. Va.
2014) (holding citizen was not required to administratively exhaust his claims)).
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IV.
Accordingly, it is ORDERED that Defendants’ motion to dismiss, ECF No. 20, is
GRANTED in part, as to all aspects of the amended complaint that challenge the inadmissibility
determination and denial of Latif’s visa, and as to counts 1, 2, 5, 6, 7, and 9 in their entirety.
It is further ORDERED that counts 1, 2, 5, 6, 7, and 9 are DISMISSED in their entirety.
It is further ORDERED that Defendants are DIRECTED to file a supplemental brief in
support of the motion to dismiss by February 28, 2018.
It is further ORDERED that Plaintiffs are DIRECTED to file a supplemental response
by March 14, 2018.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: January 30, 2018

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on January 30, 2018.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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