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Thursday, June 20, 2024 | Back issues
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Academic Can Sue Over No-Fly List Inclusion

(CN) - A Malaysian academic barred from entering the U.S. by what she claims is a mistake on the government's No Fly list can sue various federal officials for allegedly violating her rights under the First and Fifth Amendments, the 9th Circuit ruled Wednesday.

The federal appeals court in San Francisco found that Rahinah Ibrahim, a professor at the University Putra Malaysia in Serdang who studied at Stanford University for several years and continues to work with academics there, had established a "significant voluntary connection" with the U.S., and so is protected by its Constitution.

Ibrahim has been denied a visa since 2005, when she discovered, while catching a flight at a San Francisco airport to a Stanford-sponsored conference in Malaysia that her name appeared on the federal No Fly list. Ibrahim had lived legally in the U.S. from 2001 to 2005 while working on her Ph.D. in Construction and Engineering and Management. She was supposed to present her doctoral research at the conference, but ended up in an airport holding cell instead.

She was allowed to fly to Malaysia a day later, but has since been prohibited from returning. By way of explanation the American consul in Malaysia sent Ibrahim a letter in 2005 informing her that the Department of State had revoked her student visa because she was suspected terrorist.

Ibrahim filed a lawsuit in 2006 in California against the Department of Homeland Security, the Transportation Safety Administration, the FBI, the City of San Francisco, the San Francisco Police Department, United Airlines, various federal officials and several other individuals. U.S. District Court Judge William Alsup in San Francisco initially dismissed the federal defendants from the lawsuit, finding that the court had no jurisdiction over challenges to the government's terrorist watch-lists. The 9th Circuit reversed that ruling in part in 2008, however, and remanded the case.

Ibrahim subsequently settled with the non-federal defendants and filed a second amended complaint against the federal defendants, seeking to have her name removed from the list under the First and Fifth Amendments. The District Court denied her again, and in 2-1 ruling Wednesday the 9th Circuit reversed again.

While the lower-court judge had admitted that the list might be mistaken, he ruled that, as a foreign national who had voluntarily left the U.S., Ibrahim had no constitutional rights.

The 9th Circuit's three-judge panel disagreed.

"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," wrote Judge William Fletcher for the court.

However, 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," he added. "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."

Fletcher was quick to point out the limited nature of the ruling.

"We do not hold that tourists, business visitors, and all student visa holders have the same connection to the United States as Ibrahim," he wrote. "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."

This caveat was not enough to convince U.S. District Judge Kevin Duffy, who sat on the panel by designation from the U.S. District Court for Southern New York.

"The majority seems to think that the holding of this case can be restricted to petitioner and her constitutional claims alone,' he wrote in dissent. "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."

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