United States District Court, E.D. Michigan, Northern Division
Patricia T. Morris, Mag. Judge
ORDER GRANTING MOTION TO DISMISS IN PART AND
DIRECTING SUPPLEMENTAL BRIEFING
L. LUDINGTON UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
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.
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.
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).
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.
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,
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. 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)).
entered in the TSDB, nominees must 1) meet the
“reasonable suspicion watchlisting standard” and
2) have sufficient identifiers. 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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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
Id. at ¶ 124.
alleges that Defendants violated the confrontation clauses of
the fifth and sixth amendments by failing to provide
Plaintiffs with the evidence against them or ...