In a significant reaffirmation of the decision earlier this year in Ibrahim v. DHS, another federal District Court has now found that the US government’s administrative procedures for reviewing and appealing “no-fly” decisions violate both Constitutional standards of due process and the requirements of the Administrative Procedure Act.
The ruling this week by Judge Anna J. Brown of the US District Court for the District of Oregon, in Portland, comes in the case of Latif, et al. v. Holder, et al. This lawsuit was brought in 2010 by the ACLU on behalf of ten US citizens and permanent residents (green card holders). Their stories, as summarized in Judge Brown’s latest ruling, vary, but all of them have been prevented from boarding international flights to or from the US, and/or overflying US airspace.
Some of the plaintiffs in Latif v. Holder have been trapped in the US, separated from family and/or employment opportunities abroad, while others are trapped overseas, unable to return home. At least one of the plaintiffs who booked passage on a passenger-carrying ocean freighter to return to Europe from the USA was denied boarding by the ship’s captain as a result of a “recommendation” from the US Customs and Border Protection division of DHS.
In 2012, the 9th Circuit Court of Appeals overturned the government’s effort to prevent the District Court from hearing this case. Last year, finally beginning to consider the merits of the complaint, Judge Brown ruled that international travel by air is a right that can only be restricted in accordance with due process of law.
Judge Brown’s latest ruling addresses whether the government’s current procedures, particularly the DHS “Traveler Redress Inquiry Program” (TRIP), provide such due process. Judge Brown has now decided that they do not, and must be changed to provide the subjects of no-fly orders with:
- Notice (at least after they have been denied boarding on an international flight and sought redress) of whether they are on the US government’s no-fly list.
- At least a summary of the nature of the “suspicion” and the evidentiary basis for the administrative decision to place them on the no-fly list.
- An opportunity for some sort of in-person hearing to present evidence to rebut the allegations and evidence against them.
Echoing Judge Alsup’s finding in Ibrahim v. DHS, Judge Brown found that the opportunity to submit exculpatory or rebuttal evidence through the TRIP program is meaningless without notice of what allegations have been made, on what evidentiary basis, and thus of what needs to be rebutted.