An interesting ruling from the 9th Circuit yesterday (Judge W. Fletcher, joined by Judge Nelson, dissent by visiting Judge Duffy (the latter appearing by designation)).
Rabinah Ibrahim is a Malaysian professor who obtained her PhD at Stanford. According to the complaint, she discovered in 2005 while attempting to fly from California to Malaysia that she was on a no-fly list. She eventually was allowed to take the trip, but was not permitted to return, and now has been found ineligible (on unspecified grounds relating to terrorism) to have a visa to return, separate from the no-fly list issue. She eventually brought a civil suit, which in its current form alleges violations of the First Amendment (Freedom of Association) and the Fifth Amendment (Procedural Due Process, Equal Protection). The district court found that she had standing to sue, but concluded that she was “an alien who voluntarily left the United States and thus left her constitutional rights at the water’s edge.” The Ninth Circuit’s opinion yesterday reverses on the latter point. Here are the key passages from the majority opinion:
B. Constitutional Claims
Claim 13 of the SAC alleges that the placement of Ibrahim’s name on the government’s terrorist watchlists violates her right to freedom of association under the First Amendment and her rights to equal protection and due process under the Fifth Amendment.FN21
At this point in the litigation, no court has attempted to determine the merits of Ibrahim’s claims under the First and Fifth Amendments. The parties have not briefed whether her placement on a terrorist watchlist violates her rights to freedom of association, equal protection, and due process. The only question before us is whether Ibrahim even has the right to assert such claims.
We begin with the uncontested proposition that if Ibrahim had remained in the United States, she would have been able to assert claims under the First and Fifth Amendments to challenge her placement on the government’s terrorist watchlists. It is well established that aliens legally within the United States may challenge the constitutionality of federal and state actions. See, e.g., Examining Bd. of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 580 (1976); Mathews v. Diaz, 426 U.S. 67, 77 (1976); Hampton v. Mow Sun Wong, 426 U.S. 88, 101–03 (1976); Sugarman v. Dougall, 413 U.S. 634, 641 (1973); Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953); Torao Takahashi v.. Fish and Game Comm’n, 334 U.S. 410, 419–20 (1948). Even aliens who are in the United States illegally may bring constitutional challenges, see, e.g., Plyler v. Doe, 457 U.S. 202, 211–12 (1982); Wong Wing v. United States, 163 U.S. 228, 237 (1896), including the ability to challenge the revocation of a visa, see ANA Int’l Inc. v. Way, 393 F.3d 886, 893–84 (9th Cir.2004) (allowing judicial review of INS decision to revoke temporary worker visa for purely legal questions, including constitutional challenges). The question in this case is whether Ibrahim lost the right she otherwise had because she left the United States.
The Supreme Court has held in a series of cases that the border of the United States is not a clear line that separates aliens who may bring constitutional challenges from those who may not. For example, a resident alien who voluntarily leaves the United States on a brief trip with an intent to return is constitutionally entitled to a due process hearing if the government seeks to exclude her upon return to the United States. See, e.g., Landon v. Plasencia, 459 U.S. 21, 34 (1982) (resident alien entitled to constitutional due process hearing in exclusion proceedings upon re-entry after a “few days” abroad); Rosenberg v. Fleuti, 374 U.S. 449, 450 (1963) (entry after innocent, casual, and brief excursion abroad did not qualify as “entry” for immigration purposes); Kwong Hai Chew, 344 U.S. at 593–95 (resident alien entitled to constitutional due process hearing after exclusion following a five-month voyage abroad).See also Boumediene v. Bush, 553 U.S. 723 (2008) (aliens held as enemy combatants outside the de jure sovereign territory of the United States may petition for habeas corpus to challenge the constitutionality of their detention); Al Maqaleh v. Gates, 605 F.3d 84, 95–96 (D.C.Cir.2010) (location of alien outside the United States is only a factor in determining the extraterritorial reach of the Constitution); Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192 (D.C.Cir.2001) (a foreign organization with property in the United States entitled to constitutional due process hearing before Secretary of State may classify it as a “foreign terrorist organization”); Cardenas v. Smith, 733 F.2d 909, 915 (D.C.Cir.1984) (Colombian national outside the United States entitled to assert due process claim against U.S. government based on seizure of her Swiss bank account); In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1308 n.6 (9th Cir.1982) (nonresident aliens suing on same cause of action as citizens have the right to assert takings claim).
In United States v. Verdugo–Urquidez, 494 U.S. 259 (1990), the Supreme Court wrote that “aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” Id. at 271.The Court’s statement in Verdugo was an elaboration of its earlier language in United States v. Eisentrager, 339 U.S. 763 (1950), that an alien “is accorded a generous and ascending scale of rights as he increases his identity with our society.” Verdugo, 494 U.S. at 269 (quoting Eisentrager, 339 U.S. at 770) (internal quotations omitted). The Court wrote in Boumediene that the right of an alien outside the United States to assert constitutional claims is based on “objective factors and practical concerns” rather than “formalism .” 553 U.S. at 764. In determining the constitutional rights of aliens outside the United States, the Court applies a “functional approach” rather than a bright-line rule. Id.
A comparison of Ibrahim’s case with Verdugo, Eisentrager, and Boumediene is instructive.
In Verdugo, plaintiff had been arrested in Mexico and brought against his will to the Mexico–United States border, where he was turned over to United States authorities and imprisoned in the United States while awaiting trial on narcotics smuggling charges. The Court held that the plaintiff had “no previous significant voluntary connection with the United States” and therefore had no right to assert a Fourth Amendment challenge searches and seizures of his property by United States agents in Mexico. Verdugo, 494 U.S. at 271 (emphasis added).
Relying on Verdugo, 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. The government mistakes the nature of the Verdugo inquiry. Under Verdugo, the inquiry is whether the alien has voluntarily established a connection with the United States, not whether the alien has voluntarily left the United States. 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. But the mere fact that an alien’s departure is voluntary tells us very little. 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.
In Eisentrager, the plaintiffs were German citizens who had been arrested in China, convicted of violating the laws of war after adversary trials before a U.S. military tribunal in China, and sent to a prison in Germany to serve their sentences. The Supreme Court held that they did not have a right to seek a writ of habeas corpus under our Constitution. The Court summarized:
[To agree with plaintiffs that they are entitled to seek habeas] we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.
339 U.S. at 777.
Ibrahim’s case is unlike that of the plaintiffs in Eisentrager.She has not been convicted of, or even charged with, any violation of law. She is a citizen of a country with which we have never been at war. She contends that the placement of her name on the government’s terrorist watchlists is a mistake. Her contention is not implausible, given the frequent mistakes the government has made in placing names on these lists. She has established a substantial voluntary connection with the United States through her Ph. D. studies at a distinguished American university, and she wishes to maintain that connection.
In Boumediene, the plaintiffs were aliens who had been designated as enemy combatants and who were detained at the United States Naval Station in Guantanamo. Plaintiffs had not been tried or convicted of any crime. They sought federal habeas corpus. The government argued that because plaintiffs were aliens who had committed acts outside the United States and were being detained outside the United States, they were not entitled to seek habeas relief. The Court rejected the government’s proposed bright-line rule, calling it a “formal, sovereignty-based test.” 553 U.S. at 764. The Court wrote that while the United States does not have de jure sovereignty over the Naval Station at Guantanamo Bay, it “maintains de facto sovereignty.” Id. at 755.Applying a “functional approach,” id. at 764, the Court held that the plaintiffs in Boumediene, unlike the plaintiffs in Eisentrager, had a right to seek a writ of habeas corpus.
Ibrahim shares an important similarity with the plaintiffs in Boumediene.The Boumediene plaintiffs and Ibrahim both sought (or seek) the right to assert constitutional claims in a civilian court in order to correct what they contend are mistakes. In Boumediene, plaintiffs sought the right to try to establish they were not, in fact, enemy combatants. Ibrahim seeks the right to try to establish that she does not, in fact, deserve to be placed on the government’s watchlists.
The government in Boumediene proposed a brightline “formal sovereignty-based test” under which the absence of de jure jurisdiction over Guantanamo would have meant that plaintiffs had no right to seek habeas corpus under the Constitution. The Court disagreed, adopting instead a “functional approach” under which the absence of de jure jurisdiction was not determinative. Id . at 764.The government proposes a similar bright-line “formal sovereignty-based test” in Ibrahim’s case. Under the government’s proposed test in this case, any alien, no matter how great her voluntary connection with the United States, immediately loses all constitutional rights as soon as she voluntarily leaves the country, regardless of the purpose of her trip, and regardless of the length of her intended stay abroad. The government’s proposed test is not the law. The law that we are bound to follow is, instead, the “functional approach” of Boumediene and the “significant voluntary connection” test of Verdugo.
Under Boumediene and Verdugo, we hold that Ibrahim has “significant voluntary connection” with the United States. She voluntarily established a connection to the United States during her four years at Stanford University while she pursued her Ph.D. She voluntarily departed from the United States to present the results of her research at a Stanford-sponsored conference. The purpose of her trip was to further, not to sever, her connection to the United States, and she intended her stay abroad to be brief.
We do not hold that tourists, business visitors, and all student visa holders have the same connection to the United States as Ibrahim. 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. See, e.g., Hampton, 426 U.S. at 101 n.21; Galvan v. Press, 347 U.S. 522, 530–31 (1954); Shaughnessy v. United States ex rel. Mezei, 345 U . S. 206, 210–11 (1953). We hold only that Ibrahim has established “significant voluntary connection” with the United States such that she has the right to assert claims under the First and Fifth Amendments. Like the Court in Boumediene, we express no opinion on the validity of the underlying constitutional claims. Boumediene, 553 U.S. at 733.
….
Posted by Robert Chesney 
Robert Chesney's National Security Law Listserv Archive 