U.S. Government Ordered to Remove Professor From No-Fly List

SAN FRANCISCO (CN) - Rejecting the government's claim of "secret security information," U.S. District Judge William Alsup ordered the removal from a U.S. no-fly list of a Stanford University graduate from Malaysia.

In a public version of his sealed judgment released Tuesday, U.S. District Judge William Alsup said the government admitted that "mistaken information" caused Malaysian national Dr. Rahinah Ibrahim to be blacklisted, and that its "administrative remedies fall short and do not supply sufficient due process."

Alsup ordered Homeland Security to "cleanse and/or correct its lists and records of the mistaken information and to certify under oath that such correction(s) have been made." (Parentheses in original.)

"In light of the confusion caused by the government's mistake, such cleansing-certification relief is ordered in this case," Alsup wrote. "Also, the government is ordered to disclose to Ibrahim her current status on (or off) the no-fly list (without prejudice to future adjustments based on new information). In this connection, the government concedes that Ibrahim is not a threat to our national security." (Parentheses in original.)

Ibrahim's case goes back to January 2005, when Transportation Security Administration officials prevented her from boarding a flight from San Francisco to Hawaii. Though she was eventually allowed to fly back to Malaysia, Ibrahim discovered the State Department had revoked her student visa and she was denied entry back into the U.S. to finish her doctoral thesis at Stanford.

While going on to become a professor at the University Putra Malaysia, Ibrahim sued Homeland Security and several other federal agencies in 2006 for violations of her First and Fifth Amendment rights. Initially, Alsup dismissed the suit for lack of standing as a noncitizen that had voluntarily left the U.S. - a decision that was overturned by the 9th Circuit Court of Appeals in 2008.

The case went to trial last month - without Ibrahim, who continues to be denied entry into the U.S. even to litigate her own case. Alsup addressed Ibrahim's visa troubles, but noted that federal law prevents much judicial review of immigration matters.

"When a nonimmigrant alien with standing to assert constitutional rights has been denied a visa under the Immigration and Nationality Act, the consular officer must specify which of the nine subsections formed the basis of the denial," Alsup wrote, citing the 9th Circuit's decision last year in Din v. Kerry.

He continued: "If, moreover, a consular officer advises a nonimmigrant alien that she is not eligible to seek a discretionary waiver of inadmissibility when, under the law, she is eligible to at least apply for a waiver, that erroneous advisement may be reviewed by a district court to the limited extent of requiring the government to inform the nonimmigrant alien that she is eligible to at least apply for a discretionary waiver. Such relief is ordered here. The subsequent grant or denial of any such application, however, would not be reviewable."

Alsup again chastised the government's pervasive need for secrecy - a frequent theme throughout the bench trial where the public was frequently removed from the courtroom - to protect "secret security information" and what Justice Department lawyers claimed were state secrets. He admitted to filing the full judgment under seal reluctantly.

"In the court's view, all of the separate order should be made public, but it will remain under seal and the parties (and counsel) shall maintain its secrecy until April 15, 2014, so that our court of appeals can rule on the government's desire to maintain its secrecy," Alsup chided.

He added: "Because of the importance of access by the public to the work of our courts, the government and Ibrahim are urged to promptly meet and confer and to agree to the maximum extent possible on at least a redacted version to be released promptly to the public, reserving as to the balance pending appeal and keeping in mind that the stay of public release will expire April 15."

The Justice Department said it is reviewing Alsup's decision - which is more than most Americans can do - and declined to comment. But one of Ibrahim's pro bono attorneys, Elizabeth Pipkin of the firm McManis Faulkner, praised the ruling.

"Justice has finally been done for our client, an innocent woman who was ensnared in the government's flawed watch listing system," Pipkin said.

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