SAN FRANCISCO (CN) – A lawyer for a Muslim woman who was detained at the San Francisco Airport because her name appeared on no-fly list asked the 9th Circuit on Monday to reinstate his client’s civil-rights claims for the second time.
Rahinah Ibrahim was studying for her doctorate at Stanford University when the U.S. government barred her from flying to Kuala Lumpur in her homeland of Malaysia because her name mistakenly appeared on the so-called “no-fly list,” her attorney Marwa Elzankaly said.
This status prevented Ibrahim from renewing her visa or re-entering the United States, forced her to finish her studies remotely, and could affect her ability to fly on international flights with no connections in the United States.
After filing suit, U.S. District Judge William Alsup dismissed Ibrahim’s civil rights claims, finding that “as a non-resident alien who voluntarily left the United States, the Constitution no longer applies to her.”
Ibrahim has fought in the 9th Circuit to overturn Alsup’s findings before. In 2008, the court reversed a ruling that threw her lawsuit out for alleged jurisdictional deficiency.
She claimed Monday that the constitutional violation occurred while she was lawfully in the United States, and that the violation is ongoing. Her visa application was denied for “being suspected of engaging in terrorist activity.”
The presence of her name on the no-fly list prevents her from flying on United States airplane carriers on international flights that do not stop in the United States. It could also prevent her from flying internationally with foreign airplane carriers and subject her to other adverse treatment because the U.S. government provides the names of people on their terrorist watch lists to other countries.
A lawyer for the Justice Department, Joshua Walden, said Ibrahim’s claim for injunctive relief “requires her to show threat of future injury, not past.” Walden said Ibrahim is looking to address an injury that might occur in the future, a time when she will not be in the United States.
“[The] lack of presence precludes alien non-citizen from asserting constitutional claims,” he added.
Walden argued that Ibrahim is claiming she cannot return to the United States, but that would be true in any case because she does not have a valid visa. He also claims Ibrahim failed to allege in the original pleading that she would be prevented from flying from one foreign country to another foreign country.
Ibrahim has merely speculated that she could obtain a visa to return to the United States if the government removes her name from the no-fly list, Walden continued.
Though Walden said there are “a dozen” reasons for denying a visa application, Elzankaly referred to evidence that Ibrahim’s visa application was denied for “being suspected of engaging in terrorist activity.”
Judge Kevin Duffy, one member of the three-judge panel, said Ibrahim believes the presence of her name on the no-fly list was a “colossal mistake” and that the government’s position is “you cannot make us fix a colossal mistake. It may or may not be one, and you cannot bring a lawsuit to make us enquire.”
Walden responded that there is a redress procedure for noncitizens, and that Ibrahim should have argued her point under the Administrative Procedure Act instead of as a constitutional right claim.
In her rebuttal, Elzankaly cited the section of Ibrahim’s original pleading where she did assert a “classic APA nonconstitutional claim.” Elzankaly also cited an article that claims the U.S. government diverted an Air France flight bound for Mexico because someone on board was on the no-fly list, which underscored Elzankaly’s claim that the violations suffered by Ibrahim are ongoing.
In 2009, Alsup ordered the Transportation Security Administration to produce FBI phone logs related to Ibrahim; TSA employee logs; airport video recordings; and documents discussing the incident or instructing police to detain or arrest Ibrahim. Alsup said Ibrahim was not entitled to access the no-fly list and documents identifying Ibrahim as someone who needed special screening. She was also barred access to documents considered when placing her name on the no-fly list and in the terrorist-screening database.