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Amiri v. Kelly

United States District Court, E.D. Michigan, Northern Division

January 30, 2018

Loabat Amiri, Mohammed Amin Latif, Farbod Latif, Plaintiffs,
ing LemoJohn Kelly, Secretary, U.S. Department John Kelly, Secretary, U.S. Department of Homeland Security, in his official capacity; Rex W. Tillerson, Secretary U.S. Department of State, in his official Capacity; Acting Commissioner Kevin K. McAleenan, Customs and B 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.

          Patricia T. Morris, Mag. Judge



         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.



         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.

         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.

         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.



         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).


         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, 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 and the no fly list: procedural due process and hurdles to litigation at 2, (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)).

         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 “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.



         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 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 pre-deprivation 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.

         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 ...

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