CLOSED,CV,PROTO
U.S. District Court U.S. District of Minnesota (DMN) CIVIL DOCKET FOR CASE #: 0:17−cv−02835−DWF−DTS

Wilwal et al v. Kelly et al Assigned to: Judge Donovan W. Frank Referred to: Magistrate Judge David T. Schultz Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 07/13/2017 Date Terminated: 05/22/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Abdisalam Wilwal individually and on behalf of their minor children, M.O., N.W., A.W., and A.M.

represented by Amira A ElShareif Robins Kaplan LLP 800 LaSalle Ave Ste 2800 Mpls, MN 55402−2015 612−349−0984 Fax: 612−339−4181 Email: aelshareif@robinskaplan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hina Shamsi ACLU−American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 212−284−7321 Email: hshamsi@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hugh Handeyside ACLU−American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 212−519−7857 Email: hhandeyside@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ian Bratlie ACLU of MN 709 S Front St Suite 1B Mankato, MN 56001 507 995−6575 Email: ibratlie@aclu−mn.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

John B Gordon ACLU of Minnesota ACLU of Minnesota 2828 University Avenue, S.E. Ste 160 Minneapolis, MN 55414 612−597−0162 Email: john.bennett.gordon@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Sagal Abdigani individually and on behalf of their minor children, M.O., N.W., A.W., and A.M.

Noor Zafar American Civil Liberties Union Foundation 125 Broad Street Ste 18th Floor New York, NY 10004 469−301−5991 Email: nzafar@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Randall Tietjen Robins Kaplan LLP 800 LaSalle Ave Ste 2800 Mpls, MN 55402−2015 612−349−8500 Fax: 612−339−4181 Email: rtietjen@robinskaplan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Teresa J Nelson ACLU of Minnesota P.O. Box 14720 Minneapolis, MN 55414 651−529−1692 Email: tnelson@aclu−mn.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Friedricks Robins Kaplan LLP 800 LaSalle Ave Ste 2800 Minneapolis, MN 55402 612−349−8500 Email: sarahfriedricks@davisbrownlaw.com TERMINATED: 02/25/2020
represented by Amira A ElShareif (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh Handeyside (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ian Bratlie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant John Kelly in his official capacity as Secretary of the Department of Homeland Security TERMINATED: 10/12/2017
Defendant Kevin McAleenan Acting Commissioner of U.S. Customs and Border Protection, in his official capacity

John B Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Noor Zafar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Randall Tietjen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Teresa J Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Friedricks (See above for address) TERMINATED: 02/25/2020
represented by Erin M Secord United States Attorney's Office 300 S 4th St Ste 600 Minneapolis, MN 55415 612−664−5611 Email: erin.secord@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner DOJ−Civ 1100 L. St. NW Room 12210 Washington, DC 20005 202−514−4505 Email: michael.l.drezner@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan Bradley Parker DOJ−Civ 20 Massachusetts Ave, NW Washington, DC 20001 202−514−4336 Email: ryan.parker@usdoj.gov TERMINATED: 06/07/2018 PRO HAC VICE
represented by Courtney Enlow DOJ−Civ Federal Programs Branch 1100 L Street, NW Ste 12102 Washington, DC 20530

Defendant Thomas Homan Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity
Defendant Peter T. Edge in his official capacity as Executive Associate Director of Homeland Security Investigations, U.S. Immigration and Customs Enforcement TERMINATED: 10/12/2017
Defendant

202−616−8467 Email: courtney.d.enlow@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin M Secord (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Bradley Parker (See above for address) TERMINATED: 06/07/2018 PRO HAC VICE
represented by Courtney Enlow (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin M Secord (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Bradley Parker (See above for address) TERMINATED: 06/07/2018 PRO HAC VICE
represented by Erin M Secord (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan Bradley Parker (See above for address) TERMINATED: 06/07/2018 PRO HAC VICE
represented by

Jefferson B. Sessions Attorney General of the United States, in his official capacity
Defendant Andrew G. McCabe in his official capacity as Acting Director of the Federal Bureau of Investigation TERMINATED: 10/12/2017
Defendant Charles H. Kable, IV Director of the Terrorist Screening Center, in his official capacity
Defendant

Courtney Enlow (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin M Secord (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Bradley Parker (See above for address) TERMINATED: 06/07/2018 PRO HAC VICE
represented by Erin M Secord (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan Bradley Parker (See above for address) TERMINATED: 06/07/2018 PRO HAC VICE
represented by Courtney Enlow (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin M Secord (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Bradley Parker (See above for address) TERMINATED: 06/07/2018 PRO HAC VICE
represented by

Elaine Duke Acting Secretary of the Department of Homeland Security, in her official capacity TERMINATED: 01/19/2018
Defendant Derek N. Benner Acting Executive Associate Director of Homeland Security Investigations, U.S. Immigration and Customs Enforcement, in his official capacity
Defendant Christopher A. Wray Director of the Federal Bureau of Investigation, in his official capacity
Defendant United States of America

Erin M Secord (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan Bradley Parker (See above for address) TERMINATED: 06/07/2018 PRO HAC VICE
represented by Courtney Enlow (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin M Secord (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan Bradley Parker (See above for address) TERMINATED: 06/07/2018 PRO HAC VICE
represented by Courtney Enlow (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin M Secord (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan Bradley Parker (See above for address) TERMINATED: 06/07/2018 PRO HAC VICE
represented by Courtney Enlow (See above for address) LEAD ATTORNEY

Defendant
Kirstjen Nielsen Secretary of the Department of Homeland Security

PRO HAC VICE ATTORNEY TO BE NOTICED
Erin M Secord (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jocelyn Krieger DOJ−Civ Torts Branch, Federal Tort Claims Act 175 N. St. NE Ste 11.1326 Washington, DC 20002 202−616−1674 Email: jocelyn.krieger@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul David Stern DOJ−Civil Division 1331 Pennsylvania Ave., NW Room 8008N Washington, DC 20004 202−233−0719 Email: paul.david.stern@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Bradley Parker (See above for address) TERMINATED: 06/07/2018 PRO HAC VICE
represented by Courtney Enlow (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin M Secord (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Drezner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Bradley Parker (See above for address) TERMINATED: 06/07/2018 PRO HAC VICE

Date Filed 07/13/2017
07/13/2017
07/13/2017 07/13/2017 07/14/2017
07/14/2017 07/14/2017 07/17/2017 07/21/2017 07/24/2017 07/27/2017 07/27/2017 07/27/2017

# Docket Text
1 COMPLAINT against Peter T. Edge, Thomas Homan, Charles H. Kable, IV, John Kelly, Kevin McAleenan, Andrew G. McCabe, Jefferson B. Sessions (Filing fee $400 receipt number AMNDC−5606508) filed by Sagal Abdigani, Abdisalam Wilwal. Filer requests summons issued. (Attachments: # 1 Exhibit(s) A, # 2 Civil Cover Sheet). (Tietjen, Randall) Modified text on 7/14/2017 (lmb). (Entered: 07/13/2017)
2 TEXT ONLY ENTRY: Notice re: Non−Admitted Attorney
We have received documents listing Hugh Handeyside, Huna Shamsi as counsel of record. If he or she wishes to be listed as an attorney of record in this case, he or she must be admitted to the bar of the U.S. District Court of Minnesota in accordance with Local Rule 83.5 (a), (b) and (c) or temporarily admitted pro hac vice in accordance with Local Rule 83.5 (d) or (e).
For more admissions information and forms, please see the Attorney Forms Section of the courts website at href=http://www.mnd.uscourts.gov/FORMS/court_forms.shtml#attorneyforms. (AKL) (Entered: 07/13/2017)
3 TEXT ONLY ENTRY: CLERK'S NOTICE OF INITIAL CASE ASSIGNMENT. Case assigned to Judge Donovan W. Frank per Civil Rights List and referred to Magistrate Judge Becky R. Thorson. Please use case number 17cv2835 DWF/BRT. (AKL) (Entered: 07/13/2017)
4 Summons Issued as to Peter T. Edge, Thomas Homan, Charles H. Kable, IV, John Kelly, Kevin McAleenan, Andrew G. McCabe, Jefferson B. Sessions. (AKL) (Entered: 07/13/2017)
5 ORDER OF RECUSAL. Magistrate Judge Becky R. Thorson recused. Case reassigned to Magistrate Judge David T. Schultz for all further proceedings. NOTE: the new case number is 17cv2835 DWF/DTS. Please use this case number for all subsequent pleadings. Signed by Magistrate Judge Becky R. Thorson on 7/14/17. (AKL) (Entered: 07/14/2017)
6 MOTION for Admission Pro Hac Vice for Attorney Hina Shamsi. Filing fee $ 100, receipt number AMNDC−5612170 filed by Sagal Abdigani, Abdisalam Wilwal. (Tietjen, Randall) (Entered: 07/14/2017)
7 DOCUMENT FILED IN ERROR. MOTION for Admission Pro Hac Vice for Attorney Hugh Handeyside. Filing fee $ 100, receipt number AMNDC−5612226 filed by Sagal Abdigani, Abdisalam Wilwal. (Tietjen, Randall) Modified text on 7/17/2017 (MMG). (Entered: 07/14/2017)
8 TEXT ONLY ENTRY: ORDER granting 6 Motion for Admission Pro Hac Vice of Attorney Hina Shamsi for Sagal Abdigani and Abdisalam Wilwal. Approved by Magistrate Judge David T. Schultz on 07/17/2017. (MMG) (Entered: 07/17/2017)
9 MOTION for Admission Pro Hac Vice for Attorney Hugh Handeyside. Filing fee $ 100, receipt number AMNDC−5625549 filed by Sagal Abdigani, Abdisalam Wilwal. (Tietjen, Randall) (Entered: 07/21/2017)
10 TEXT ONLY ENTRY: ORDER granting 9 Motion for Admission Pro Hac Vice of Attorney Hugh Handeyside for Sagal Abdigani, and Abdisalam Wilwal. Approved by Magistrate Judge David T. Schultz on 7/24/17. (MAM) (Entered: 07/24/2017)
11 SUMMONS Returned Executed by Sagal Abdigani, Abdisalam Wilwal. John Kelly served on 7/17/2017, answer due 9/15/2017. (Tietjen, Randall) (Entered: 07/27/2017)
12 SUMMONS Returned Executed by Sagal Abdigani, Abdisalam Wilwal. Kevin McAleenan served on 7/17/2017, answer due 9/15/2017. (Tietjen, Randall) (Entered: 07/27/2017)
13 SUMMONS Returned Executed by Sagal Abdigani, Abdisalam Wilwal. Thomas Homan served on 7/17/2017, answer due 9/15/2017. (Tietjen, Randall) (Entered: 07/27/2017)

07/27/2017 07/27/2017 07/27/2017 07/27/2017 08/15/2017 08/17/2017
08/18/2017 08/18/2017 09/14/2017 09/14/2017 09/15/2017
10/12/2017
10/12/2017
10/12/2017 10/13/2017

14 SUMMONS Returned Executed by Sagal Abdigani, Abdisalam Wilwal. Peter T. Edge served on 7/17/2017, answer due 9/15/2017. (Tietjen, Randall) (Entered: 07/27/2017)
15 SUMMONS Returned Executed by Sagal Abdigani, Abdisalam Wilwal. Jefferson B. Sessions served on 7/17/2017, answer due 9/15/2017. (Tietjen, Randall) (Entered: 07/27/2017)
16 SUMMONS Returned Executed by Sagal Abdigani, Abdisalam Wilwal. Andrew G. McCabe served on 7/17/2017, answer due 9/15/2017. (Tietjen, Randall) (Entered: 07/27/2017)
17 SUMMONS Returned Executed by Sagal Abdigani, Abdisalam Wilwal. Charles H. Kable, IV served on 7/17/2017, answer due 9/15/2017. (Tietjen, Randall) (Entered: 07/27/2017)
18 MOTION for Admission Pro Hac Vice for U.S. Government Attorney Ryan B. Parker filed by Peter T. Edge, Thomas Homan, Charles H. Kable, IV, John Kelly, Kevin McAleenan, Andrew G. McCabe, Jefferson B. Sessions. (Secord, Erin) (Entered: 08/15/2017)
19 TEXT ONLY ENTRY: ORDER granting 18 Motion for Admission Pro Hac Vice of U.S. Government Attorney Ryan Bradley Parker for Peter T. Edge, Thomas Homan, Charles H. Kable, IV, John Kelly, Kevin McAleenan, Andrew G. McCabe, and Jefferson B. Sessions. Approved by Magistrate Judge David T. Schultz on 8/17/17. (MAM) (Entered: 08/17/2017)
20 NOTICE of Appearance by Ryan Bradley Parker on behalf of All Defendants. (Parker, Ryan) (Entered: 08/18/2017)
21 NOTICE of Appearance by Erin M Secord on behalf of All Defendants. (Secord, Erin) (Entered: 08/18/2017)
22 STIPULATION to Extend Time to Respond to Complaint by Peter T. Edge, Thomas Homan, Charles H. Kable, IV, John Kelly, Kevin McAleenan, Andrew G. McCabe, Jefferson B. Sessions. (Parker, Ryan) (Entered: 09/14/2017)
23 PROPOSED ORDER TO JUDGE re 22 Stipulation. (Parker, Ryan) (Entered: 09/14/2017)
24 ORDER: Peter T. Edge answer due 10/13/2017; Thomas Homan answer due 10/13/2017; Charles H. Kable, IV answer due 10/13/2017; John Kelly answer due 10/13/2017; Kevin McAleenan answer due 10/13/2017; Andrew G. McCabe answer due 10/13/2017; Jefferson B. Sessions answer due 10/13/2017. Signed by Magistrate Judge David T. Schultz on 9/15/17. (AKL) (Entered: 09/15/2017)
25 AMENDED COMPLAINT for Injunctive and Declaratory Relief and Damages against Thomas Homan, Charles H. Kable, IV, Kevin McAleenan, Jefferson B. Sessions, Elaine Duke, Derek N. Benner, Christopher A. Wray, United States of America. filed by Sagal Abdigani, Abdisalam Wilwal. No summons requested. (Attachments: # 1 Exhibit(s) A). (Tietjen, Randall) Modified text on 10/12/2017 (lmb). (Entered: 10/12/2017)
26 STIPULATION To Extend Time to Respond to Amended Complaint by Derek N. Benner, Elaine Duke, Thomas Homan, Charles H. Kable, IV, Kevin McAleenan, Jefferson B. Sessions, Christopher A. Wray, United States of America. Jointly signed by Sagal Abdigani, Abdisalam Wilwal. (Parker, Ryan) Modified text on 10/12/2017 (lmb). (Entered: 10/12/2017)
27 PROPOSED ORDER TO JUDGE re 26 Stipulation. (Parker, Ryan) (Entered: 10/12/2017)
28 ORDER EXTENDING TIME TO RESPOND TO COMPLANT: Derek N. Benner answer due 11/2/2017; Elaine Duke answer due 11/2/2017; Thomas Homan answer due 11/2/2017; Charles H. Kable, IV answer due 11/2/2017; Kevin McAleenan answer due 11/2/2017; Jefferson B. Sessions answer due 11/2/2017; United States of America answer due 11/2/2017; Christopher A. Wray answer due 11/2/2017. Signed by Magistrate Judge David T. Schultz on 10/13/17. (AKL) (Entered: 10/13/2017)

10/13/2017 10/13/2017 11/01/2017 11/01/2017 11/01/2017 11/02/2017
11/02/2017 11/02/2017
11/08/2017 11/08/2017
11/08/2017 11/08/2017 11/27/2017 12/04/2017 12/14/2017 12/15/2017

29 MOTION for Admission Pro Hac Vice for U.S. Government Attorney Michael Leon Drezner for Kevin McAleenan, Thomas Homan, Jefferson B. Sessions, Charles H. Kable, IV. (JLW) (Entered: 10/13/2017)
30 TEXT ONLY ENTRY: ORDER granting 29 Motion for Admission Pro Hac Vice of U.S. Government Attorney Michael Leon Drezner for Thomas Homan, Charles H. Kable, IV, Kevin McAleenan, and Jefferson B. Sessions. Approved by Magistrate Judge David T. Schultz on 10/13/2017. (JLW) (Entered: 10/13/2017)
31 MOTION for Admission Pro Hac Vice for U.S. Government Attorney Paul David Stern for the United States of America. (JLW) (Entered: 11/01/2017)
32 TEXT ONLY ENTRY: ORDER granting 31 Motion for Admission Pro Hac Vice of U.S. Government Attorney Paul David Stern for the United States of America. Approved by Magistrate Judge David T. Schultz on 11/01/2017. (JLW) (Entered: 11/01/2017)
33 NOTICE of Appearance by Paul David Stern on behalf of United States of America. (Stern, Paul) (Entered: 11/01/2017)
34 STIPULATION to Extend the Time to Respond to the Amended Complaint by Derek N. Benner, Elaine Duke, Peter T. Edge, Thomas Homan, Charles H. Kable, IV, John Kelly, Kevin McAleenan, Andrew G. McCabe, Jefferson B. Sessions, United States of America, Christopher A. Wray. Jointly signed by Sagal Abdigani, Abdisalam Wilwal. (Parker, Ryan) Modified text on 11/3/2017 (lmb). (Entered: 11/02/2017)
35 PROPOSED ORDER TO JUDGE re 34 Stipulation,. (Parker, Ryan) (Entered: 11/02/2017)
36 ORDER EXTENDING TIME TO RESPOND TO AMENDED COMPLANT: Derek N. Benner answer due 11/8/2017; Elaine Duke answer due 11/8/2017; Thomas Homan answer due 11/8/2017; Charles H. Kable, IV answer due 11/8/2017; Kevin McAleenan answer due 11/8/2017; Jefferson B. Sessions answer due 11/8/2017; United States of America answer due 11/8/2017; Christopher A. Wray answer due 11/8/2017. Signed by Magistrate Judge David T. Schultz on 11/2/17. (AKL) (Entered: 11/02/2017)
37 MOTION to Dismiss/General filed by Derek N. Benner, Elaine Duke, Thomas Homan, Charles H. Kable, IV, Kevin McAleenan, Jefferson B. Sessions, United States of America, Christopher A. Wray. (Parker, Ryan) (Entered: 11/08/2017)
38 MEMORANDUM in Support re 37 MOTION to Dismiss/General filed by Derek N. Benner, Elaine Duke, Thomas Homan, Charles H. Kable, IV, Kevin McAleenan, Jefferson B. Sessions, United States of America, Christopher A. Wray. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Parker, Ryan) (Entered: 11/08/2017)
39 PROPOSED ORDER TO JUDGE re 37 MOTION to Dismiss/General filed by Derek N. Benner, Elaine Duke, Thomas Homan, Charles H. Kable, IV, Kevin McAleenan, Jefferson B. Sessions, United States of America, Christopher A. Wray.(Parker, Ryan) (Entered: 11/08/2017)
40 NOTICE OF HEARING ON MOTION 37 MOTION to Dismiss/General : Motion Hearing set for 3/2/2018 11:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Parker, Ryan) (Entered: 11/08/2017)
41 LETTER TO DISTRICT JUDGE by Sagal Abdigani, Abdisalam Wilwal . (Tietjen, Randall) (Entered: 11/27/2017)
42 TEXT ONLY NOTICE to Attorneys: The Court has reviewed the letter filed at Doc. No. 41 and approves the briefing schedule as outlined in the letter. (BJS) (Entered: 12/04/2017)
43 LETTER TO DISTRICT JUDGE by Sagal Abdigani, Abdisalam Wilwal . (Tietjen, Randall) (Entered: 12/14/2017)
44 TEXT ONLY NOTICE to Attorney: The Court has reviewed the letter filed at Doc. No. 43 and approves the briefing schedule as outlined in the letter. (BJS) (Entered: 12/15/2017)

12/21/2017 01/09/2018 01/10/2018 01/19/2018
03/02/2018 06/07/2018 06/12/2018 09/27/2018
10/10/2018
10/10/2018 10/15/2018 10/25/2018 11/20/2018 11/20/2018 11/20/2018 11/23/2018

45 MEMORANDUM in Opposition re 37 MOTION to Dismiss/General filed by Sagal Abdigani, Abdisalam Wilwal. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Handeyside, Hugh) (Entered: 12/21/2017)
46 LETTER TO DISTRICT JUDGE by Derek N. Benner, Elaine Duke, Peter T. Edge, Thomas Homan, Charles H. Kable, IV, John Kelly, Kevin McAleenan, Andrew G. McCabe, Jefferson B. Sessions, United States of America, Christopher A. Wray . (Secord, Erin) (Entered: 01/09/2018)
47 TEXT ONLY NOTICE TO ATTORNEYS: The Court has reviewed the letter filed by the Defendants at Doc. No. 46 . The Court approves the Defendants request for an additional 3,500 words for their two combined memoranda, for a total of up to 15,500 words for both briefs. (BJS) (Entered: 01/10/2018)
48 REPLY re 37 MOTION to Dismiss/General filed by Derek N. Benner, Elaine Duke, Peter T. Edge, Thomas Homan, Charles H. Kable, IV, John Kelly, Kevin McAleenan, Andrew G. McCabe, Jefferson B. Sessions, United States of America, Christopher A. Wray. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Parker, Ryan) (Entered: 01/19/2018)
49 Minute Entry for proceedings held before Judge Donovan W. Frank: Motion Hearing held on 3/2/2018 re 37 MOTION to Dismiss/General. Matter submitted. Written order to be issued. (Court Reporter Lynne Krenz) (las) (Entered: 03/02/2018)
50 NOTICE of Withdrawal as Attorney for Defendants (Parker, Ryan) (Entered: 06/07/2018)
51 NOTICE by Sagal Abdigani, Abdisalam Wilwal re 45 Memorandum in Opposition to Motion Supplemental Authority (Attachments: # 1 Exhibit(s) A)(Handeyside, Hugh) (Entered: 06/12/2018)
52 MEMORANDUM OPINION AND ORDER granting in part and denying in part 37 Motion to Dismiss. 1.The Governments Motion is GRANTED with respect to Plaintiffs Fifth Claim for Relief alleging a violation of Plaintiffs' substantive due process rights. Plaintiffs' Fifth Claim for Relief is DISMISSED WITH PREJUDICE. 2. The Government's Motion is DENIED in all other respects. (Written Opinion) Signed by Judge Donovan W. Frank on 9/27/2018. (RLB) (Entered: 09/27/2018)
53 STIPULATION to Extend Time ot Answer Amended Complaint by Derek N. Benner, Elaine Duke, Peter T. Edge, Thomas Homan, Charles H. Kable, IV, John Kelly, Kevin McAleenan, Andrew G. McCabe, Kirstjen Nielsen, Jefferson B. Sessions, United States of America, Christopher A. Wray. Jointly Signed by Plaintiffs. (Drezner, Michael) (Entered: 10/10/2018)
54 PROPOSED ORDER TO JUDGE re 53 Stipulation,. (Drezner, Michael) (Entered: 10/10/2018)
55 (Text−only) ORDER on 34 Stipulation. IT IS HEREBY ORDERED that Defendants shall file their Answer to the Amended Complaint on or before 10/25/2018. Ordered by Magistrate Judge David T. Schultz on 10/15/2018. (AJS) (Entered: 10/15/2018)
56 ANSWER to Amended Complaint filed by Derek N. Benner, Elaine Duke, Peter T. Edge, Thomas Homan, Charles H. Kable, IV, John Kelly, Kevin McAleenan, Andrew G. McCabe, Kirstjen Nielsen, Jefferson B. Sessions, United States of America, Christopher A. Wray. (Drezner, Michael) (Entered: 10/25/2018)
57 MOTION for Admission Pro Hac Vice for U.S. Government Attorney Jocelyn Krieger filed by United States of America. (JGK) (Entered: 11/20/2018)
58 TEXT ONLY ENTRY: ORDER granting 57 Motion for Admission Pro Hac Vice of U.S. Government Attorney Jocelyn Krieger for United States of America. Approved by Magistrate Judge David T. Schultz on 11/20/2018. (JGK) (Entered: 11/20/2018)
59 NOTICE of Appearance by Jocelyn Krieger on behalf of United States of America. (Krieger, Jocelyn) (Entered: 11/20/2018)
60 STIPULATION to Extend Time to File 26(f) Report by Derek N. Benner, Elaine Duke, Peter T. Edge, Thomas Homan, Charles H. Kable, IV, John Kelly, Kevin McAleenan, Andrew G. McCabe, Kirstjen Nielsen, Jefferson B. Sessions, United States of

11/23/2018 11/27/2018 12/07/2018 12/21/2018 12/21/2018
12/28/2018 01/02/2019 01/02/2019 01/03/2019 01/29/2019 02/01/2019 02/04/2019 02/06/2019
02/06/2019 02/07/2019

America, Christopher A. Wray. Jointly Signed by Plaintiffs. (Drezner, Michael) (Entered: 11/23/2018)
61 PROPOSED ORDER TO JUDGE re 60 Stipulation,. (Drezner, Michael) (Entered: 11/23/2018)
62 ORDER on 60 Stipulation extending time to file 26(f) report. Signed by Magistrate Judge David T. Schultz on 11/27/2018. (TJB) (Entered: 11/27/2018)
63 Joint Rule 26(f) Report by Sagal Abdigani, Abdisalam Wilwal. ATTACHMENTS FILED IN ERROR−WILL REFILE AS SEPARATE EVENTS. (Attachments: # 1 Attachment A − Defendants' Proposed Order, # 2 Attachment B − Plaintiffs' Proposed Order)(ElShareif, Amira) Modified text on 12/10/2018 (JLB). (Entered: 12/07/2018)
64 MOTION for Admission Pro Hac Vice for U.S. Government Attorney Courtney Enlow filed by Derek N. Benner, Thomas Homan, Charles H. Kable, IV, Kevin McAleenan, Kirstjen Nielsen, Jefferson B. Sessions, United States of America, Christopher A. Wray. (JGK) (Entered: 12/21/2018)
65 TEXT ONLY ENTRY: ORDER granting 64 Motion for Admission Pro Hac Vice of U.S. Government Attorney Courtney Enlow for Derek N. Benner, Thomas Homan, Charles H. Kable, IV, Kevin McAleenan, Kirstjen Nielsen, Jefferson B. Sessions, United States of America and for Christopher A. Wray. Approved by Magistrate Judge David T. Schultz on 12/21/2018. (JGK) (Entered: 12/21/2018)
66 ORDER/NOTICE of Setting: Pretrial Conference set for 1/15/2019 at 10:00 AM in Courtroom 9E (MPLS) before Magistrate Judge David T. Schultz. Signed by Magistrate Judge David T. Schultz on 12/28/2018. (Attachments: # 1 Consent Form) (TJB) (Entered: 12/28/2018)
67 MOTION to Stay All Deadlines and Continue Pre−Trial Conference filed by Derek N. Benner, Thomas Homan, Charles H. Kable, IV, Kevin McAleenan, Kirstjen Nielsen, Jefferson B. Sessions, United States of America, Christopher A. Wray. (Drezner, Michael) (Entered: 01/02/2019)
68 PROPOSED ORDER TO JUDGE re 67 MOTION to Stay All Deadlines and Continue Pre−Trial Conference filed by Derek N. Benner, Thomas Homan, Charles H. Kable, IV, Kevin McAleenan, Kirstjen Nielsen, Jefferson B. Sessions, United States of America, Christopher A. Wray.(Drezner, Michael) (Entered: 01/02/2019)
69 ORDER granting 67 Motion to Stay. Signed by Magistrate Judge David T. Schultz on 1/3/2019. (TJB) (Entered: 01/03/2019)
70 NOTICE TO THE COURT OF RESTORATION OF APPROPRIATIONS by Derek N. Benner, Thomas Homan, Charles H. Kable, IV, Kevin McAleenan, Kirstjen Nielsen, Jefferson B. Sessions, United States of America, Christopher A. Wray (Drezner, Michael) Modified text on 1/31/2019 (JLB). (Entered: 01/29/2019)
71 MOTION for Admission Pro Hac Vice for Attorney Noor Zafar. Filing fee $ 100, receipt number AMNDC−6643934 filed by Sagal Abdigani, Abdisalam Wilwal. (Friedricks, Sarah) (Entered: 02/01/2019)
72 TEXT ONLY ENTRY: ORDER granting 71 Motion for Admission Pro Hac Vice of Attorney Noor Zafar for Sagal Abdigani and for Abdisalam Wilwal. Approved by Magistrate Judge David T. Schultz on 2/4/2019. (NAH) (Entered: 02/04/2019)
73 STIPULATION to Set Pretrial Conference and Revise Rule 26(f) Report by Derek N. Benner, Elaine Duke, Peter T. Edge, Thomas Homan, Charles H. Kable, IV, Kevin McAleenan, Kirstjen Nielsen, Jefferson B. Sessions, United States of America, Christopher A. Wray. Jointly Signed by Plaintiffs. (Attachments: # 1 Revised 26(f) Report)(Drezner, Michael) (Entered: 02/06/2019)
74 PROPOSED ORDER TO JUDGE re 73 Stipulation,. (Drezner, Michael) (Entered: 02/06/2019)
75 Consent MOTION to Lift Stay filed by Derek N. Benner, Elaine Duke, Peter T. Edge, Thomas Homan, Charles H. Kable, IV, Kevin McAleenan, Kirstjen Nielsen, Jefferson B. Sessions, United States of America, Christopher A. Wray. (Drezner, Michael) (Entered: 02/07/2019)

02/07/2019 02/08/2019 02/11/2019
03/08/2019 03/12/2019 03/12/2019 03/15/2019
03/18/2019
03/25/2019
03/25/2019 03/28/2019 05/09/2019 05/09/2019 05/16/2019
05/17/2019 05/20/2019
05/20/2019

76 PROPOSED ORDER TO JUDGE re Consent Motion to Lift Stay. (Drezner, Michael) (Entered: 02/07/2019)
77 ORDER granting 75 Motion to Lift Stay. Signed by Magistrate Judge David T. Schultz on 2/8/2019. (TJB) (Entered: 02/11/2019)
78 ORDER/NOTICE SETTING PRETRIAL HEARING: Parties are directed to Meet and Confer by 3/5/2019. Rule 26 Meeting Report due by 3/5/2019. Pretrial Conference set for 3/12/2019 at 09:30 AM in Courtroom 9E (MPLS) before Magistrate Judge David T. Schultz. Signed by Magistrate Judge David T. Schultz on 02/11/2019. (TJB) (Additional attachment(s) added on 2/11/2019: # 1 Consent Form) (TJB). Modified text on 2/11/2019 (TJB). (Entered: 02/11/2019)
79 Joint MOTION for Protective Order filed by United States of America. (Attachments: # 1 Proposed Clawback/502(d) Order)(Krieger, Jocelyn) (Entered: 03/08/2019)
80 ORDER granting 79 Motion for Protective Order. Signed by Magistrate Judge David T. Schultz on 3/12/2019. (TJB) (Entered: 03/12/2019)
81 Minute Entry for proceedings held before Magistrate Judge David T. Schultz: Initial Pretrial Conference held on 3/12/2019. (TJB) (Entered: 03/12/2019)
82 SCHEDULING ORDER: Amended Pleadings due by 12/6/2019. Fact Discovery due by 8/30/2019. Motions (non−disp) due 12/6/2019. See order for briefing on summary judgment. Ready for trial due by 7/6/2020. Signed by Magistrate Judge David T. Schultz on 3/15/2019. (TJB) (Entered: 03/15/2019)
83 ORDER/NOTICE: Confidential Letter to Court due by 5/16/2019. Parties are directed to Meet and Confer by 5/16/2019. Settlement Conference set for 5/23/2019 at 09:30 AM in Courtroom 9E (MPLS) before Magistrate Judge David T. Schultz. Signed by Magistrate Judge David T. Schultz on 3/18/2019. (TJB) (Entered: 03/18/2019)
84 STIPULATION to Stay Discovery by Derek N. Benner, Elaine Duke, Peter T. Edge, Thomas Homan, Charles H. Kable, IV, Kevin McAleenan, Kirstjen Nielsen, United States of America, Christopher A. Wray. Jointly Signed by Plaintiffs. (Drezner, Michael) (Entered: 03/25/2019)
85 PROPOSED ORDER TO JUDGE re 84 Stipulation,. (Drezner, Michael) (Entered: 03/25/2019)
86 ORDER on 84 Stipulation. Signed by Magistrate Judge David T. Schultz on 3/28/2019. (TJB) (Entered: 03/28/2019)
87 LETTER TO MAGISTRATE JUDGE by United States of America . (Krieger, Jocelyn) (Entered: 05/09/2019)
88 LETTER TO MAGISTRATE JUDGE by United States of America re: Protective Order. (Krieger, Jocelyn) (Entered: 05/09/2019)
89 AMENDED ORDER/NOTICE FOR SETTLEMENT CONFERENCE: Confidential Letter to Court due by 7/2/2019. Parties are directed to Meet and Confer by 7/2/2019. Settlement Conference set for 7/9/2019 at 09:00 AM in Courtroom 9E (MPLS) before Magistrate Judge David T. Schultz. Signed by Magistrate Judge David T. Schultz on 5/16/2019. (TJB) (Entered: 05/16/2019)
90 PROTECTIVE ORDER. Signed by Magistrate Judge David T. Schultz on 5/17/2019. (TJB) (Entered: 05/17/2019)
91 MOTION to Stay Discovery through July 9, 2019 filed by Derek N. Benner, Elaine Duke, Peter T. Edge, Thomas Homan, Charles H. Kable, IV, John Kelly, Kevin McAleenan, Andrew G. McCabe, Kirstjen Nielsen, Jefferson B. Sessions, United States of America, Christopher A. Wray. (Enlow, Courtney) (Entered: 05/20/2019)
92 PROPOSED ORDER TO JUDGE re 91 MOTION to Stay Discovery through July 9, 2019 filed by Derek N. Benner, Elaine Duke, Peter T. Edge, Thomas Homan, Charles H. Kable, IV, John Kelly, Kevin McAleenan, Andrew G. McCabe, Kirstjen Nielsen, Jefferson B. Sessions, United States of America, Christopher A. Wray.(Enlow, Courtney) (Entered: 05/20/2019)

05/24/2019 07/09/2019 07/10/2019
07/19/2019 07/19/2019 07/19/2019 07/30/2019 07/31/2019 07/31/2019 08/06/2019
08/13/2019 08/16/2019
08/19/2019 08/21/2019 02/25/2020 03/10/2020

93 ORDER granting 91 Motion to Stay Discovery. Signed by Magistrate Judge David T. Schultz on 5/24/2019. (TJB) (Entered: 05/24/2019)
94 Minute Entry for proceedings held before Magistrate Judge David T. Schultz: Settlement Conference held on 7/9/2019. (TJB) (Entered: 07/10/2019)
95 TEXT−ONLY ORDER: Absent further order of this Court, this matter shall be stayed until August 5, 2019. During this period of time, the parties shall continue to negotiate a resolution of this matter, focusing their time and effort on matters of equitable relief. The Court will hold a settlement status conference with Defendants on July 19 at 9:00 AM CDT. The Court will hold a settlement status conference with Plaintiffs on July 19 at 1:00 PM CDT. The Court will hold a JOINT status conference on July 26 at 11:00 AM CDT. Plaintiffs' attorneys shall initiate the joint call to chambers; counsel for each side shall initiate the ex parte status call to chambers. If the case is not resolved during the stay, all discovery that has been served in this matter shall be responded to by August 12. Ordered by Magistrate Judge David T. Schultz on 7/10/2019. (TJB) (Entered: 07/10/2019)
96 TEXT−ONLY NOTICE: The JOINT status conference ordered at docket 95, is RESET for JULY 30 at 11:00AM CDT. Plaintiffs' attorneys shall initiate the joint call to chambers. (TJB) Modified text on 7/19/2019 to correct date. (TJB). (Entered: 07/19/2019)
97 Minute Entry for proceedings held before Magistrate Judge David T. Schultz: Telephone Conference held on 7/19/2019. (TJB) (Entered: 07/22/2019)
98 Minute Entry for proceedings held before Magistrate Judge David T. Schultz: Telephone Conference held on 7/19/2019. (TJB) (Entered: 07/22/2019)
99 Minute Entry for proceedings held before Magistrate Judge David T. Schultz: Telephone Conference held on 7/30/2019. (TJB) (Entered: 07/31/2019)
100 Minute Entry for proceedings held before Magistrate Judge David T. Schultz: Telephone Conference held on 7/31/2019. (TJB) (Entered: 08/01/2019)
101 Minute Entry for proceedings held before Magistrate Judge David T. Schultz: Telephone Conference held on 7/31/2019. (TJB) (Entered: 08/01/2019)
102 (Text−only) ORDER CONTINUING STAY: Absent further order of this Court, this matter shall be stayed until August 19, 2019. During this period of time, the parties shall continue to negotiate a resolution of this matter, focusing their time and effort on matters of equitable relief. If the case is not resolved during the stay, all discovery that has been served in this matter shall be responded to by August 26, 2019. Ordered by Magistrate Judge David T. Schultz on 8/6/2019. (TJB) (Entered: 08/06/2019)
103 (Text−only) NOTICE TO ATTORNEY. A further settlement conference will be held on August 21, 2019 beginning at 9:00AM, Courtroom 9E (MPLS)before Mag. Judge Schultz. Sections I and V of the Amended Order for Settlement Conference 89 remain in effect. (TJB) (Entered: 08/13/2019)
104 (Text−only) ORDER in Response to E−mail. Absent further order of this Court, this matter shall be stayed until August 21, 2019. If the case is not resolved during the stay, all discovery that has been served in this matter shall be responded to by August 28, 2019. Ordered by Magistrate Judge David T. Schultz on 8/16/2019. (TJB) (Entered: 08/16/2019)
105 Minute Entry for proceedings held before Magistrate Judge David T. Schultz: Telephone Conference held on 8/19/2019. (TJB) (Entered: 08/19/2019)
106 Minute Entry for proceedings held before Magistrate Judge David T. Schultz: Settlement Conference held on 8/21/2019. Binding settlement reached. (TJB) Modified text on 10/18/2019 (TJB). (Entered: 09/05/2019)
107 NOTICE of Withdrawal as Attorney (Friedricks, Sarah) (Entered: 02/25/2020)
108 STIPULATION by Derek N. Benner, Elaine Duke, Peter T. Edge, Thomas Homan, Charles H. Kable, IV, John Kelly, Kevin McAleenan, Andrew G. McCabe, Kirstjen Nielsen, Jefferson B. Sessions, United States of America, Christopher A. Wray. Jointly Signed by Plaintiffs. (Drezner, Michael) (Entered: 03/10/2020)

03/10/2020 03/11/2020 03/30/2020 03/30/2020 03/30/2020 03/30/2020 03/30/2020
04/09/2020
04/10/2020
04/10/2020 05/21/2020 05/21/2020 05/22/2020 05/26/2020

109 PROPOSED ORDER TO JUDGE re 108 Stipulation,. (Drezner, Michael) (Entered: 03/10/2020)
110 PROTECTIVE ORDER. Signed by Magistrate Judge David T. Schultz on 3/11/2020. (TJB) (Entered: 03/11/2020)
111 SEALED MOTION Petition for Approval of Minor Settlement filed by Abdigani, Sagal; Wilwal, Abdisalam. (Handeyside, Hugh) (Entered: 03/30/2020)
112 SEALED PROPOSED ORDER TO JUDGE re 111 MOTION Petition for Approval of Minor Settlement filed by Abdigani, Sagal; Wilwal, Abdisalam.(Handeyside, Hugh) (Entered: 03/30/2020)
113 Redacted Document for 111 Sealed Petition for Approval of Minor Settlement filed by Sagal Abdigani, Abdisalam Wilwal.(Handeyside, Hugh) (Entered: 03/30/2020)
114 Redacted Document for 112 Sealed Proposed Findings of Fact and Order Approving Minor Settlement filed by Sagal Abdigani, Abdisalam Wilwal.(Handeyside, Hugh) (Entered: 03/30/2020)
115 NOTICE OF HEARING ON MOTION 111 MOTION Petition for Approval of Minor Settlement : TELEPHONIC Motion Hearing set for 4/9/2020 at 02:00 PM before Judge Donovan W. Frank. (Handeyside, Hugh) Modified text on 4/1/2020 (las). (Entered: 03/30/2020)
116 Minute Entry for proceedings held before Judge Donovan W. Frank: Motion Hearing held on 4/9/2020 re 111 Sealed MOTION Petition for Approval of Minor Settlement filed by Abdisalam Wilwal, Sagal Abdigani. Matter submitted. Written order forthcoming. Transcript of this proceeding is sealed until further order of the Court. (Court Reporter Lynne Krenz) (las) (Entered: 04/09/2020)
117 SEALED FINDINGS OF FACT AND ORDER APPROVING MINOR SETTLEMENT granting 111 SEALED MOTION Petition for Approval of Minor Settlement.(Written Opinion) Signed by Judge Donovan W. Frank on 4/10/2020. (las) (Entered: 04/10/2020)
118 REDACTED FINDINGS OF FACT AND ORDER APPROVING MINOR SETTLEMENT re: 117 . Signed by Judge Donovan W. Frank on 4/10/2020. (las) (Entered: 04/10/2020)
119 STIPULATION of Dismissal by Sagal Abdigani, Abdisalam Wilwal. (Handeyside, Hugh) (Entered: 05/21/2020)
120 PROPOSED ORDER TO JUDGE re 119 Stipulation of Dismissal. (Handeyside, Hugh) (Entered: 05/21/2020)
121 ORDER FOR DISMISSAL WITH PREJUDICE re: 119 Stipulation. Signed by Judge Donovan W. Frank on 5/22/2020.(las) (Entered: 05/22/2020)
122 JUDGMENT (Attachments: # 1 Civil Notice − appeal)(KDS) (Entered: 05/26/2020)

 
 CASE 0:17-cv-02835-DWF-DTS Document 1 Filed 07/13/17 Page 1 of 26

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

ABDISALAM WILWAL and SAGAL ABDIGANI, individually and on behalf of their minor children, M.O., N.W., A.W., and A.M.,
Plaintiffs,
v.
JOHN KELLY, in his official capacity as Secretary of the Department of Homeland Security; KEVIN McALEENAN, in his official capacity as Acting Commissioner of U.S. Customs and Border Protection; THOMAS HOMAN, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement; PETER T. EDGE, in his official capacity as Executive Associate Director of Homeland Security Investigations, U.S. Immigration and Customs Enforcement; JEFFERSON B. SESSIONS, in his official capacity as Attorney General of the United States; ANDREW G. McCABE, in his official capacity as Acting Director of the Federal Bureau of Investigation; CHARLES H. KABLE, IV, in his official capacity as Director of the Terrorist Screening Center,
Defendants.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (Violation of Fourth and Fifth Amendment rights and the Administrative Procedure Act)
No. ___________________

INTRODUCTION 1. The Constitution prohibits U.S. officials from subjecting American citizens to abusive, unlawful searches and seizures at borders and ports of entry. Yet U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) have violated these prohibitions and failed to ensure that their officers abide by the Constitution. Plaintiffs in this matter are among the U.S. citizens—

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particularly American Muslims and Americans of Arab, African, Middle Eastern, or South Asian descent—who have been subjected to arbitrary and unreasonable detention, searches, and questioning at the border in violation of their Fourth Amendment rights. This unlawful treatment can result, as it did for Plaintiff Abdisalam Wilwal, from wrongful placement on the government’s terrorism-related watchlist, but the government has refused to provide a fair and meaningful process to challenge placement on the watchlist—in violation of the Fifth Amendment guarantee of due process.
2. Plaintiffs are six members of the Wilwal-Abdigani family: Abdisalam Wilwal, Sagal Abdigani, and their four children aged five to 14 at the time of the events challenged here. All are U.S. citizens who traveled from their home near Minneapolis, Minnesota, to visit relatives in Regina, Saskatchewan in March 2015. When they sought to reenter the United States at a border crossing in North Dakota, CBP officers surrounded the family’s vehicle with weapons drawn, handcuffed Abdisalam Wilwal, and forcibly detained him and the rest of the family for nearly 11 hours.
3. The CBP officers treated the family this way not because they had probable cause to believe anyone in the family had committed a crime, but because Abdisalam Wilwal’s name appeared on the government’s terrorism-related watchlist. Mr. Wilwal should not have been placed on the watchlist. The government has refused to tell Mr. Wilwal why his name appeared on the watchlist, and it has not provided him with a meaningful opportunity to correct or challenge whatever error led to his placement on it. In any event, the government’s placement of Mr. Wilwal on the watchlist cannot justify the officers’ abuse of him and his family at the border.
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4. Officials kept Mr. Wilwal isolated from his family and handcuffed for the duration of the detention. Hours into his detention, anxious about his family’s safety and without access to food, Mr. Wilwal passed out, requiring emergency medical attention. Several hours later, Homeland Security Investigations (HSI) officers questioned Mr. Wilwal about his religion, his travels, and the purpose of the family’s trip. The officers then released Mr. Wilwal.
5. Sagal Abdigani and the couple’s four children endured nearly 11 hours of detention solely because they were traveling with Mr. Wilwal. During the detention, Ms. Abdigani used her son’s mobile phone to call 911 to report that she and her family were being held against their will at the border post. When officers realized that Ms. Abdigani was using the phone, they confiscated it and directed the 911 dispatcher not to send assistance. The officers then took the Wilwal-Abdiganis’ then 14-year-old son, M.O., to a separate room, patted him down, and asked him to remove his clothes, which he refused to do. The officers also searched the contents of M.O.’s phone. The officers refused to release Ms. Abdigani and the Wilwal children until they released Mr. Wilwal.
6. The Wilwal-Abdigani family would like to travel outside the United States again, but they fear that they will be abused by CBP or HSI officers when they seek to return home. They also fear that Defendants will disseminate or misuse information derived from their unlawful detention in North Dakota.
7. CBP and HSI officers violated the Wilwal-Abdigani family members’ Fourth Amendment right to be free from unreasonable seizures and searches. On information and belief, Defendants have adopted or authorized policies that permit, or failed to prevent, such violations of U.S. citizens’ rights. Defendants who are responsible
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for the watchlist and its unconstitutionally inadequate redress process also violated Mr. Wilwal’s right to due process under the Fifth Amendment. Plaintiffs bring this lawsuit to vindicate their constitutional rights.
PARTIES 8. Plaintiff Abdisalam Wilwal is a U.S. citizen and resident of Eagan, Minnesota. He is married to Plaintiff Sagal Abdigani. 9. Plaintiff Sagal Abdigani is a U.S. citizen and resident of Eagan, Minnesota. She is married to Plaintiff Abdisalam Wilwal. 10. Plaintiff M.O., son of Plaintiff Sagal Abdigani and stepson of Plaintiff Abdisalam Wilwal, is a U.S. citizen and resident of Eagan, Minnesota. He was 14 years old at the time of the events described in this complaint. 11. Plaintiff N.W., daughter of Plaintiffs Abdisalam Wilwal and Sagal Abdigani, is a U.S. citizen and resident of Eagan, Minnesota. She was eight years old at the time of the events described in this complaint. 12. Plaintiff A.W., son of Plaintiffs Abdisalam Wilwal and Sagal Abdigani, is a U.S. citizen and resident of Eagan, Minnesota. He was six years old at the time of the events described in this complaint. 13. Plaintiff A.M., son of Plaintiffs Abdisalam Wilwal and Sagal Abdigani, is a U.S. citizen and resident of Eagan, Minnesota. He was five years old at the time of the events described in this complaint. 14. Defendant John Kelly is the Secretary of the U.S. Department of Homeland Security (DHS) and has authority over all DHS personnel, policies, and
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procedures related to the treatment of American citizens entering the United States at border crossings and ports of entry. Defendant Kelly is sued in his official capacity.
15. Defendant Kevin McAleenan is the Acting Commissioner of U.S. Customs and Border Protection, a component of the Department of Homeland Security. Defendant McAleenan has authority over CBP policies, procedures, and practices related to the treatment of American citizens entering the United States at border crossings and ports of entry. Defendant McAleenan is sued in his official capacity.
16. Defendant Thomas Homan is the Director of U.S. Immigration and Customs Enforcement (ICE), a component of the Department of Homeland Security. Defendant Homan has responsibility for and oversight over ICE policies, procedures, and practices related to the detention and questioning of American citizens entering the United States at border crossings and ports of entry, including the conduct of Homeland Security Investigations officers. Defendant Homan is sued in his official capacity.
17. Defendant Peter Edge is the Executive Associate Director of Homeland Security Investigations within U.S. Immigration and Customs Enforcement. Defendant Edge has responsibility for and oversight over HSI policies, procedures, and practices related to the detention and questioning of American citizens entering the United States at border crossings and ports of entry. Defendant Edge is sued in his official capacity.
18. Defendant Jefferson Sessions is the Attorney General of the United States and heads the Department of Justice, which oversees the Federal Bureau of Investigation (FBI). The FBI, in turn, administers the Terrorist Screening Center (TSC), which was established to consolidate the government’s counterterrorism-related watchlisting operations. Defendant Sessions is sued in his official capacity.
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19. Defendant Andrew McCabe is the Acting Director of the FBI, which administers the TSC. Defendant McCabe is sued in his official capacity.
20. Defendant Charles Kable, IV, is the Director of the TSC and is sued in his official capacity.
JURISDICTION AND VENUE 21. This court has subject matter jurisdiction over Plaintiffs’ claims under 28 U.S.C. §§ 1331 and 1343(a) because this action arises under the Fourth and Fifth Amendments to the United States Constitution. 22. The Court may grant injunctive and declaratory relief for the constitutional violations alleged here pursuant to 5 U.S.C. § 702, which waives the sovereign immunity of the United States with respect to any action for injunctive relief under 28 U.S.C. § 1331; 28 U.S.C. § 2201, which confers jurisdiction to issue declaratory judgments; and/or Federal Rules of Civil Procedure 57 and 65. 23. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e) because Plaintiffs reside in this district.
FACTS 24. On March 27, 2015, Plaintiffs Abdisalam Wilwal and Sagal Abdigani took their four young children on a family trip from their home in Eagan, Minnesota, to visit Ms. Abdigani’s sister in Regina, Saskatchewan. The family drove from Eagan to the U.S.-Canada border crossing at Portal, North Dakota, where they sought to enter Canada. 25. Canadian border officers reviewed the family’s travel documents and questioned Mr. Wilwal about the family’s destination and the purpose of their trip. The officers cleared the family to enter Canada but told Mr. Wilwal that their records
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included a notation from U.S. authorities that might result in U.S. authorities questioning him more than usual when he sought to reenter the United States.
26. On their return, the family left Regina at approximately 4:00 a.m. on March 30, 2015, and drove to the same border crossing at Portal, North Dakota, arriving at approximately 6:00 a.m. Mr. Wilwal pulled the minivan up to a booth at the border crossing and handed a CBP officer his U.S. passport, Ms. Abdigani’s and M.O.’s U.S. passports, and U.S. birth certificates for N.W., A.M, and A.W.
27. The family’s identification documents were valid, and the family members were not carrying any illegal items when they arrived at the Portal border station. There was no reason to doubt that each member of the family was a U.S. citizen and was therefore admissible to the United States, and no reason to suspect that any member of the family was carrying illegal items on their persons or in their vehicle.
28. On information and belief, the CBP officers entered Plaintiffs’ names into the TECS System, a database that CBP uses for border screening and determinations regarding the admissibility of persons seeking to enter the United States.
29. Minutes after the family arrived at the CBP booth, CBP officers emerged from the border station with their handguns drawn and pointed at the van. One of the officers pointed his gun at Mr. Wilwal and yelled at him, “Don’t use weapons!” Mr. Wilwal quickly thrust his arms out of the van window to indicate that he had no weapons. As the officers surrounded the van, the officer in the booth yelled to the other officers that there were children inside the vehicle. The Wilwal-Abdigani family members were terrified, and the children began screaming and crying.
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30. One of the officers ordered Mr. Wilwal out of the van at gunpoint. Mr. Wilwal was alarmed by and afraid of the officers’ display of force. He exited the van with his hands in the air and told the officers that the family had nothing illegal in the van. One of the officers handcuffed Mr. Wilwal’s hands behind his back. At no point did Mr. Wilwal resist the officers.
31. While walking him into the station, one officer asked, “Are you Pakistani?” Mr. Wilwal replied that he is not. The officer then asked, “Where are you from?” Mr. Wilwal responded that he is an American citizen. The agent asked where Mr. Wilwal was originally from, to which Mr. Wilwal responded that he is originally from Somalia.
32. The CBP officer asked Mr. Wilwal if he is Muslim and accused him of being involved with terrorism. The accusation made Mr. Wilwal even more worried about his safety. He asked why the officer had made that accusation, and the officer responded, “We have information.”
33. The officers took Mr. Wilwal into a room in the border station and seated him in a chair while he was still handcuffed. Mr. Wilwal was worried about his family’s well-being. He asked the officers where his wife and children were and why the family was being detained. The officers refused to answer.
34. The CBP officers asked Mr. Wilwal no further questions. They left him, still handcuffed, alone in the room.
35. On information and belief, the CBP officers displayed and used force to handcuff and detain Mr. Wilwal because the TECS System indicated that Mr. Wilwal’s name appeared on a federal terrorism-related watchlist.
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The Government’s Watchlisting System and Inadequacy of the Watchlisting Redress Process 36. The government maintains a watchlisting system to identify and track purported known or suspected terrorists. The Terrorist Identities Datamart Environment (TIDE) is the government’s central repository of names and information that feeds into the government’s consolidated master watchlist, called the Terrorist Screening Database. The TSC maintains the master watchlist, which includes names and limited biometric information. Unlike TIDE, it does not include any substantive information related to the reasons for individuals’ placement on the watchlist. 37. The TSC sends records from the watchlist to other government agencies, such as CBP and the Transportation Security Administration, that perform screening functions. The TSC also shares the watchlist with numerous foreign governments, including the Canadian government. CBP obtains access to the watchlist through its TECS System. On information and belief, searches by CBP officers for identities in the TECS System automatically include searches of the watchlist. Although CBP, HSI, and other agencies may use the records provided by the TSC, it is the TSC that exercises control over individuals’ placement on, or removal from, the master watchlist. 38. Placement of an individual on the master watchlist typically causes the individual to be referred for secondary inspection at border crossings and ports of entry. 39. According to the TSC, an individual’s placement on the watchlist must be based on a “reasonable suspicion” that the individual is a known or suspected terrorist. The TSC definition of a known terrorist encompasses individuals who have been indicted, arrested, charged, and/or convicted of a terrorism-related crime. The TSC’s definition of a suspected terrorist is far broader: “an individual who is reasonably
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suspected to be, or have been, engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and/or terrorist activities based on an articulable and reasonable suspicion.”
40. The “reasonable suspicion” standard and related watchlist criteria establish a vague, overbroad, and very low threshold for inclusion on the watchlist. Under the government’s Watchlisting Guidance, “concrete facts are not necessary” to satisfy the “reasonable suspicion” standard, and uncorroborated information of questionable or even doubtful reliability can serve as the basis for watchlisting an individual. Under the Guidance, a single social media post or anonymous letter can satisfy the “reasonable suspicion” standard. These loose criteria give officers discretion to rely on rumor, innuendo, or false statements in placing people on the watchlist, and the criteria significantly increase the likelihood that the watchlist includes people who are neither known nor appropriately suspected terrorists.
41. The TSC has also failed to ensure that individuals who do not meet these loose criteria are not placed on the watchlist or are promptly removed from it. In 2013 alone, agencies nominated 468,749 individuals to the watchlist, and the TSC rejected only approximately one percent of those nominations. Government documents show that as of 2014, nearly half the people on the watchlist had no recognized terrorist-group affiliation. The Inspector General of the Department of Justice has criticized the Terrorist Screening Center for employing weak quality assurance mechanisms and for failing to remove people from the watchlist when information did not support their placement on it. Public reports also confirm that the government has placed or retained people on government watchlists as a result of human error.
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42. As of June 2016, TIDE included approximately 1.5 million people, and the master watchlist included approximately one million people.
43. The government entities involved in maintaining and implementing the watchlisting system, including Defendants, have not provided watchlisted people with a fair and effective mechanism through which to challenge their placement on the master watchlist and obtain redress for its consequences.
44. An individual who seeks to challenge placement and the consequences of placement on a watchlist may submit a standard form to the DHS Traveler Redress Inquiry Program (DHS TRIP). DHS TRIP transmits the redress petition to the TSC, which determines whether any action should be taken regarding the individual’s watchlisting status. The TSC is the final arbiter of whether the petitioning individual is retained on or removed from the master watchlist.
45. Once the TSC makes a final determination regarding an individual’s status on the watchlist, it advises DHS TRIP that it has completed its process. DHS TRIP then responds to the individual with a letter that does not confirm or deny whether the person is in fact watchlisted, or whether any watchlist records relating to the person exist. The letter does not provide any notice of the basis for placement on a terrorist watchlist. It does not state how the government has resolved the redress petition, or specify whether the person will experience similar problems related to placement on the watchlist in the future. At no point in the process can an individual appear in person before a neutral decision maker to challenge placement on the watchlist or its consequences.
46. The government’s official policy is to refuse to confirm or deny any given individual’s placement on the master watchlist. Nevertheless, individuals can become
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aware of their placement on the watchlist during the course of their travel experiences. Aspects of Mr. Wilwal’s experience before and after his attempt to cross the border on March 30, 2015 reliably indicate that he has been placed on the watchlist. Those indications include: (1) Canadian border officers informed him that U.S. authorities had included a notation that would result in additional questioning; (2) CBP officers forcefully detained him after searching the TECS system for his name and biometric information; (3) a CBP officer told Mr. Wilwal during the detention that CBP had “information” indicating that Mr. Wilwal was involved with terrorism; (4) a DHS employee later told Mr. Wilwal that his name appeared on a watchlist; and (5) an ICE “Report of Investigation” obtained through a Privacy Act request and attached hereto as Exhibit A states that the March 30, 2015 detention of Mr. Wilwal was “due to a confirmed subject record hit.” Exhibit A at 1.
47. Mr. Wilwal is not a known or an appropriately suspected terrorist. He has never engaged in conduct that would satisfy the government’s loose criteria for placement on the watchlist, and he does not know why his name and/or biometric information appeared on the watchlist. No government agency has provided him with any notice of the reasons for his placement on the watchlist or offered him any meaningful opportunity to contest his placement on the watchlist.
48. The CBP officers who detained and questioned Mr. Wilwal at the Portal border station had no information about why Mr. Wilwal’s name appeared on a terrorismrelated watchlist. On information and belief, the officers knew at most that Mr. Wilwal’s name and identifying information matched that of a person on the watchlist.
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49. The inclusion of Mr. Wilwal’s name and/or limited biometric information on a terrorism-related watchlist did not constitute reasonable suspicion or probable cause to believe that Mr. Wilwal was engaged in any wrongdoing when he and his family sought to return to the United States on March 30, 2015.
Detention of Abdisalam Wilwal 50. At approximately 10:30 a.m., after more than four hours of detention with his hands restrained behind his back, Mr. Wilwal began to feel light-headed. He remained anxious about his family’s safety and had been given nothing to eat or drink since the beginning of his detention. Still handcuffed, he tried to stand up but passed out on the floor. 51. When Mr. Wilwal regained consciousness, paramedics had arrived. They took Mr. Wilwal’s blood pressure and asked him if he wanted to be taken to the hospital, but he declined because he did not want to leave his family at the border facility. The CBP officers changed the position of the handcuffs so that Mr. Wilwal’s arms were restrained in front of his body. They gave him a small glass of water but no food. 52. Mr. Wilwal does not have a history of losing consciousness, nor did he have any medical condition at the time of the detention that could have caused him to lose consciousness. 53. The paramedics departed, and the CBP officers again left Mr. Wilwal alone and handcuffed in the room. 54. At about 3:00 p.m., approximately nine hours into Mr. Wilwal’s detention, the CBP officers told Mr. Wilwal that two HSI officers had arrived at the Portal station. On information and belief, the CBP officers at the Portal station had notified the HSI
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officers that they had detained the Wilwal family, and the CBP officers had continued to detain the entire Wilwal family at the HSI officers’ request. On information and belief, the HSI officers came to the Portal station from Minot, North Dakota.
55. Shortly before 4:00 p.m., the HSI officers began questioning Mr. Wilwal. They asked him for his name, address, and how long he had lived in the United States. Mr. Wilwal, who speaks English as a second language, was concerned that he might misunderstand the officers’ questions. He asked for an interpreter and for access to a lawyer. The HSI officers rejected both requests. One of the officers told Mr. Wilwal that if he wanted to leave, he would have to answer their questions.
56. At no point did the HSI or CBP officers advise Mr. Wilwal that he had the right to contact an attorney or that he had the right not to answer questions or to remain silent.
57. The HSI officers asked Mr. Wilwal if he is Muslim, whether he is Sunni or Shia, and whether he attends a mosque. Mr. Wilwal responded that he is Muslim but not observant, and that he does not regularly attend a mosque.
58. The officers also asked Mr. Wilwal generally about any travel within or outside the United States; the purpose of the family’s trip to Canada; who owned the van that the family was driving on the trip; whether Mr. Wilwal was employed at the time; and where Mr. Wilwal obtained the money for the trip. Mr. Wilwal provided truthful answers to each of the questions.
59. The HSI officers questioned Mr. Wilwal for approximately 45 minutes. 60. At approximately 4:40 p.m., after Mr. Wilwal had been detained for over ten and a half hours, the HSI officers told the CBP officers that they could remove Mr.
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Wilwal’s handcuffs and that he could leave the border station. He and his family did so immediately.
61. At no time during the detention was there any basis to suspect that Mr. Wilwal was engaged in any criminal wrongdoing, and nothing about his detention and interrogation was reasonably likely to produce any information about whether he was engaged at the time in criminal wrongdoing. “After completing the interview, the HSI officers did not discover any derogatory information relating to” Mr. Wilwal. Exhibit A at 3.
62. The CBP officers’ use of force to arrest and detain Mr. Wilwal, their detention of his family, their accusation that he was involved in terrorism, and the nearly 11-hour detention caused Mr. Wilwal extreme emotional distress. The officers’ conduct, and their failure to provide Mr. Wilwal with food and water, also caused him physical harm during the course of the detention, prompting the CBP officers to contact medical personnel.
Detention of Sagal Abdigani and the Wilwal-Abdiganis’ Minor Children 63. CBP officers detained Sagal Abdigani and the couple’s young children against their will for the duration of Mr. Wilwal’s detention. 64. Shortly after 6:00 a.m. on March 30, 2015, after CBP officers had handcuffed Mr. Wilwal outside the van and taken him into the border station, the remaining CBP officers—one in the booth and another who had come from the border station with his handgun drawn—asked Ms. Abdigani if she had a driver’s license. She responded that she did. An officer directed her to drive the van to the border station,
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which she did. Ms. Abdigani and the children were frightened and confused. N.W., A.W., and A.M. were screaming and crying.
65. Ms. Abdigani parked the van outside the station. The CBP officer then took the keys to the van from Ms. Abdigani, told her to leave her mobile phone in the van, and ordered her and the children out of the van and into the station.
66. CBP officers detained Ms. Abdigani and the children in the station, in an area that was cold, distressing the children further.
67. Early in CBP’s detention of Ms. Abdigani and the children, a CBP officer asked them whether they could speak or write Arabic. Ms. Abdigani asked the officer not to question her children, but the officer said that he could separate them and question M.O., her 14-year-old son, if he wanted to. Ms. Abdigani told the officer that she can speak and write Somali but not Arabic. The officer then asked her to write something in Somali, which she declined to do.
68. The CBP officers never questioned Ms. Abdigani or the children further. The officers never provided a reason for detaining Ms. Abdigani and the children.
69. After approximately an hour of detention, Ms. Abdigani asked a CBP officer if she could retrieve her mobile phone from the van and contact her sister in Canada or friends in Minnesota who were expecting the family to arrive that day, and who would become alarmed if they were unable to reach the family by phone. The officer denied the request and told Ms. Abdigani that she would not be permitted to use her phone.
70. Ms. Abdigani requested that she be allowed to drive the children to Eagan and then return for her husband because the children had school the next day. One of the
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officers said, “you’re all the same” and that no one in the family could leave the station. Ms. Abdigani asked if she could call her sister’s husband in Regina and have him pick the children up and take them back to Regina. The officer denied that request as well, again saying, “You’re all the same. You’re all detainees, including the children.” Ms. Abdigani asked the officers if they would call the children’s school or her family. They refused.
71. After several hours of detention, the children became very hungry, and Ms. Abdigani requested food for herself and the children. The CBP officers offered the children some candy. Ms. Abdigani found this troubling, as the candy was not only unhealthy but also insufficient to meet the children’s need for food. She asked the CBP officers if she could retrieve food from the family’s car, but they denied her request. After the family had been detained for approximately six hours, and after multiple requests for food, the CBP officers gave the children hamburgers but provided no food to Ms. Abdigani.
72. At about 11:00 a.m., after about five hours of detention, Ms. Abdigani realized that M.O. had his mobile phone with him in the border station. The officers had never directed M.O. to leave his phone in the car or turn it over to the officers.
73. Ms. Abdigani used the phone to call 911. On information and belief, because the phone lacked a SIM card, the call was routed to a dispatcher in the St. Paul area. Ms. Abdigani told the dispatcher that she and her family were being held against their will at the border station, and that they were afraid for their safety. The dispatcher tried to transfer the call to a dispatcher in North Dakota. However, one of the CBP officers then grabbed the phone away from Ms. Abdigani. The officer spoke with the
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dispatcher for about ten minutes and, on information and belief, convinced the dispatcher not to send assistance.
74. Shortly after the 911 call, a female CBP officer conducted a pat-down search of Ms. Abdigani.
75. Two male CBP officers took 14-year-old M.O. into a separate room and conducted a pat-down search of M.O. One of the officers demanded that M.O. take off his clothes, which M.O. refused to do.
76. M.O. did not consent to the search that the CBP officer conducted. Ms. Abdigani did not consent to any search of M.O. outside her presence.
77. M.O. was humiliated, frightened, and embarrassed by the officers’ demand that he remove his clothes.
78. At no time during the detention of M.O. did any CBP officer at the Portal station have a reasonable basis for suspecting that M.O. was carrying contraband or any illegal item.
79. At no time during the detention was there any basis to suspect that Ms. Abdigani or any of the children were seeking to bring illegal items into the country or that they were engaged in any criminal wrongdoing, and nothing about their detention and search was intended or reasonably likely to produce any information about whether they were engaged in criminal wrongdoing or seeking to bring illegal items into the country.
80. On information and belief, the CBP officers detained Ms. Abdigani and her children solely because of their association with Mr. Wilwal. The association of Ms.
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Abdigani and the children with Mr. Wilwal did not constitute reasonable suspicion or probable cause to believe that they were or had been engaged in any wrongdoing.
81. During and after the detention, Ms. Abdigani and the children were scared, anxious, and confused. The CBP officers’ aggressive use of force to arrest and detain Mr. Wilwal, their detention of Ms. Abdigani and the children against their will for nearly 11 hours, their refusal to provide Ms. Abdigani and the children with adequate food, and their attempted strip search of M.O. caused Ms. Abdigani and the children significant emotional pain and distress. Having last seen Mr. Wilwal as he was handcuffed at gunpoint and taken into custody, they were extremely worried about his safety, and Ms. Abdigani became convinced that the officers had killed Mr. Wilwal. Ms. Abdigani and the children felt personally threatened by the CBP officers. Their fear grew as the time passed, and in the afternoon N.W. said to Ms. Abdigani, “maybe they’ll kill us after sunset.”
82. The CBP officers detained Ms. Abdigani and the children until approximately 4:40 p.m., when the officers released Mr. Wilwal. The family immediately drove to Eagan and arrived at their home at approximately 2:00 a.m. on March 31, 2015.
Aftermath of the Wilwal-Abdiganis’ Detention 83. On March 31, 2015, the same day that they arrived back in the Minneapolis area, Mr. Wilwal and Ms. Abdigani went to the FBI field office in Minneapolis to report what had happened to them at the Portal border station. An FBI employee suggested that they go to the DHS office in Minneapolis and make further inquiries there.
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84. Mr. Wilwal and Ms. Abdigani went to an office housing DHS components in the Minneapolis area that same day. An employee there told them that she would try to find out why the incident had occurred and would get back to them with more information if possible. Mr. Wilwal called the office multiple times over the following days for further information. Two to three weeks after their initial visit, Mr. Wilwal received a voicemail from an administrative staff member at the DHS office. The staff member stated that the incident at the Portal border station likely occurred because Mr. Wilwal’s name appeared on a terrorist watchlist.
85. Mr. Wilwal and Ms. Abdigani each submitted DHS TRIP petitions regarding the events of March 30, 2015. Over two years later, neither has received a final response from DHS TRIP as described in paragraph 42 above.
86. The Defendants have adopted or implemented policies or practices that permit, or failed to prevent, the CBP and HSI officers’ treatment of Plaintiffs on March 30, 2015.
87. Plaintiffs continue to experience stress and anxiety about the prospect that they will be subjected to lengthy and abusive detentions at border stations, airports, or ports of entry in the future. They also remain frightened of law enforcement officers. They have not attempted to travel outside the United States since March 30, 2015. All four children want to travel to Canada to see their cousins but the family is afraid to do so. All four children have had frequent nightmares about the events of March 30, 2015.
88. Defendants created and continue to maintain records in CBP, HSI, and other databases regarding Plaintiffs’ border crossing on March 30, 2015. The ICE Report of Investigation reflects information maintained in the TECS system regarding the
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detention, including records obtained from a search of M.O.’s mobile phone. Exhibit A at 1. The Report also states that the HSI officers’ interrogation of Mr. Wilwal “was digitally recorded and will be maintained as government generated evidence,” and that Mr. Wilwal’s responses to the officers’ questions “were documented and will be maintained in the case file.” Id. at 3.
89. Plaintiffs are deeply concerned about the government’s use of the information it obtained during the detention. They are concerned that CBP and/or HSI will use the information collected during the border detention to expand the duration or scope of inspections or stops of the Plaintiffs at border stations, airports, or ports of entry in the future. They also worry that Defendants shared the information they collected on the Plaintiffs with other government agencies, such as the FBI, and that the Plaintiffs will be singled out again by government agencies on the basis of that information.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF: Unconstitutional Seizure – Fourth Amendment to the U.S. Constitution
(Abdisalam Wilwal) 90. The arrest, detention, unnecessary and extended restraint, incarceration, and interrogation of Abdisalam Wilwal constituted an unreasonable seizure in violation of the Fourth Amendment to the U.S. Constitution.
SECOND CLAIM FOR RELIEF: Excessive Use of Force – Fourth Amendment to the U.S. Constitution
(Abdisalam Wilwal) 91. The arrest, detention, unnecessary and extended restraint, and incarceration of Abdisalam Wilwal constituted an excessive use of force that was
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unreasonable under the circumstances and a violation of the Fourth Amendment to the U.S. Constitution.
92. The CBP officers’ use of excessive force against Abdisalam Wilwal caused him pain and physical injury that necessitated medical attention.
THIRD CLAIM FOR RELIEF: Unconstitutional Seizure – Fourth Amendment to the U.S. Constitution
(Sagal Abdigani, M.O., N.W., A.W., A.M.) 93. The detention and unnecessary and extended restraint of Sagal Abdigani, and each of the four children, M.O., N.W., A.W., and A.M., constituted an unreasonable seizure in violation of the Fourth Amendment to the U.S. Constitution.
FOURTH CLAIM FOR RELIEF: Violation of Procedural Due Process – Fifth Amendment to the U.S. Constitution
(Abdisalam Wilwal) 94. Mr. Wilwal was arrested, detained, incarcerated, and interrogated as a result of his placement on the master watchlist, and he is entitled to a constitutionally adequate redress process that affords him notice of the reasons for his placement on the watchlist and a meaningful opportunity to contest his continued placement on it. 95. Defendants’ actions in refusing to provide Abdisalam Wilwal with any notice of the reasons or basis for his placement on the master watchlist, and in refusing to provide him with a meaningful opportunity to challenge his placement on the watchlist and its consequences, violated Mr. Wilwal’s right to procedural due process under the Fifth Amendment to the U.S. Constitution. 96. By failing to provide Mr. Wilwal with a constitutionally adequate redress process, Defendants infringed or deprived him of protected liberty interests, including but not limited to his liberty interest in travel, entry into the United States, and freedom from
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unconstitutional seizure. Defendants have violated Mr. Wilwal’s constitutional rights without due process of law and placed him at imminent risk of suffering further harm absent the relief requested below.
FIFTH CLAIM FOR RELIEF: Violation of Substantive Due Process – Fifth Amendment to the U.S. Constitution
(Abdisalam Wilwal) 97. Because Abdisalam Wilwal is neither a known nor appropriately suspected terrorist, Defendants’ conduct in placing and retaining him on the master watchlist, and in arresting, detaining, incarcerating, and interrogating him on that basis, violated his right to substantive due process under the Fifth Amendment to the U.S. Constitution. 98. Defendants violated Mr. Wilwal’s constitutional rights, subjected him to injury that is unjustifiable by any government interest without due process of law, and placed him at imminent risk of suffering further harm absent the relief requested below.
SIXTH CLAIM FOR RELIEF: Violation of the Administrative Procedure Act
(All Plaintiffs) 99. Defendants’ actions in adopting or implementing policies or practices that permit, or failed to prevent, Defendants’ abuse of Plaintiffs, constituted final agency action within the meaning of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. 100. Defendants’ unlawful seizure, unnecessary and extended restraint, and search of the Plaintiffs, as set forth above, was arbitrary, capricious, an abuse of discretion, otherwise not in accordance with the law, contrary to constitutional rights, and outside the Defendants’ statutory authority. Defendants’ unlawful conduct has adversely
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affected Plaintiffs and placed them at imminent risk of suffering further harm absent the relief requested below.
SEVENTH CLAIM FOR RELIEF: Violation of the Administrative Procedure Act
(Abdisalam Wilwal) 101. Defendants’ actions in refusing to provide Abdisalam Wilwal with a constitutionally adequate process for obtaining redress for his placement on the master watchlist, and in refusing to remove him from the watchlist, constituted final agency action within the meaning of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. 102. Defendants’ failure to provide Mr. Wilwal with notice of the reasons for his placement on the watchlist, and a meaningful opportunity to contest his continued retention on it and the consequences thereof, is arbitrary, capricious, an abuse of discretion, otherwise not in accordance with the law, and contrary to constitutional rights, and should be set aside as unlawful pursuant to 5 U.S.C. § 706. 103. Because Abdisalam Wilwal is neither a known nor appropriately suspected terrorist, Defendants’ conduct in placing and retaining him on the master watchlist, and in arresting, detaining, incarcerating, and interrogating him on that basis, is arbitrary, capricious, an abuse of discretion, otherwise not in accordance with the law, and contrary to constitutional rights, and should be set aside as unlawful pursuant to 5 U.S.C. § 706.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court:
(a) Declare that Defendants have violated Plaintiffs’ rights under the Fourth and Fifth Amendments to the United States Constitution and the Administrative Procedure Act;
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(b) Enter an injunction:
a. enjoining Defendants from arresting, seizing, searching, or interrogating Abdisalam Wilwal because of his placement on a terrorism-related watchlist;
b. enjoining Defendants from arresting, seizing, detaining, searching, or interrogating Sagal Abdigani, M.O., N.W., A.W., or A.M. because of their association with Abdisalam Wilwal;
c. requiring Defendants to provide Abdisalam Wilwal with notice of the reasons for his placement on the master watchlist and a meaningful opportunity to contest his continued retention on it;
d. requiring Defendants to remedy the constitutional and statutory violations identified above, including the removal of Abdisalam Wilwal from the master watchlist;
e. requiring Defendants to expunge from government databases or otherwise destroy all information unlawfully obtained from Plaintiffs;
(c) Award Plaintiffs reasonable attorneys’ fees and costs; and
(d) Grant all other relief the Court deems appropriate.
Respectfully submitted,
Hugh Handeyside (pro hac vice pending) Hina Shamsi (pro hac vice pending) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500 (phone) (212) 549-2583 (facsimile) hhandeyside@aclu.org hshamsi@aclu.org
Teresa Nelson (No. 269736) John Gordon (No. 363237) Ian Bratlie (No. 319454) American Civil Liberties Union Foundation of
Minnesota 2300 Myrtle Avenue, Suite 180 Saint Paul, MN 55114 (651) 645-4097 (phone) (651) 647-5948 (facsimile)
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Dated: July 13, 2017

tnelson@aclu-mn.org jgordon@aclu-mn.org ibratlie@aclu-mn.org
Robins Kaplan LLP
/s/ Randall Tietjen Randall Tietjen (No. 214474) Amira A. ElShareif (No. 0395348) Sarah E. Friedricks (No. 0397466) 800 LaSalle Avenue Suite 2800 Minneapolis, MN 55402 (612) 349-8500 RTietjen@RobinsKaplan.com AElShareif@RobinsKaplan.com SFriedricks@RobinsKaplan.com
Counsel for Plaintiffs

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

ABDISALAM WILWAL and SAGAL ABDIGANI, individually and on behalf of their minor children, M.O., N.W., A.W., and A.M.,
Plaintiffs,
v.

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND DAMAGES (Violation of Fourth and Fifth Amendment rights, the Administrative Procedure Act, and the Federal Tort Claims Act)

ELAINE DUKE, Acting Secretary of the Department of Homeland Security, in her official capacity; KEVIN McALEENAN, Acting Commissioner of U.S. Customs and Border Protection, in his official capacity; THOMAS HOMAN, Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity; DEREK N. BENNER, Acting Executive Associate Director of Homeland Security Investigations, U.S. Immigration and Customs Enforcement, in his official capacity; JEFFERSON B. SESSIONS, Attorney General of the United States, in his official capacity; CHRISTOPHER A. WRAY, Director of the Federal Bureau of Investigation, in his official capacity; CHARLES H. KABLE, IV, Director of the Terrorist Screening Center, in his official capacity; and the UNITED STATES OF AMERICA,

Case No. 0:17-cv-02835

Defendants,

INTRODUCTION 1. The Constitution prohibits U.S. officials from subjecting American citizens to abusive, unlawful searches and seizures at borders and ports of entry. Yet U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs
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Enforcement (ICE) have violated these prohibitions and failed to ensure that their officers abide by the Constitution. Plaintiffs in this matter are among the U.S. citizens— particularly American Muslims and Americans of Arab, African, Middle Eastern, or South Asian descent—who have been subjected to arbitrary and unreasonable detention, searches, and questioning at the border in violation of their Fourth Amendment rights. This unlawful treatment can result, as it did for Plaintiff Abdisalam Wilwal, from wrongful placement on the government’s terrorism-related watchlist, but the government has refused to provide a fair and meaningful process to challenge placement on the watchlist—in violation of the Fifth Amendment guarantee of due process.
2. Plaintiffs are six members of the Wilwal-Abdigani family: Abdisalam Wilwal, Sagal Abdigani, and their four children aged five to 14 at the time of the events challenged here. All are U.S. citizens who traveled from their home near Minneapolis, Minnesota, to visit relatives in Regina, Saskatchewan in March 2015. When they sought to reenter the United States at a border crossing in North Dakota, CBP officers surrounded the family’s vehicle with weapons drawn, handcuffed Abdisalam Wilwal, and forcibly detained him and the rest of the family for nearly 11 hours.
3. The CBP officers treated the family this way not because they had probable cause to believe anyone in the family had committed a crime, but because Abdisalam Wilwal’s name appeared on the government’s terrorism-related watchlist. Mr. Wilwal should not have been placed on the watchlist. The government has refused to tell Mr. Wilwal why his name appeared on the watchlist, and it has not provided him with a meaningful opportunity to correct or challenge whatever error led to his placement on
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it. In any event, the government’s placement of Mr. Wilwal on the watchlist cannot justify the officers’ abuse of him and his family at the border.
4. Officials kept Mr. Wilwal isolated from his family and handcuffed for the duration of the detention. Hours into his detention, anxious about his family’s safety and without access to food, Mr. Wilwal passed out, requiring emergency medical attention. Several hours later, Homeland Security Investigations (HSI) officers questioned Mr. Wilwal about his religion, his travels, and the purpose of the family’s trip. The officers then released Mr. Wilwal.
5. Sagal Abdigani and the couple’s four children endured nearly 11 hours of detention solely because they were traveling with Mr. Wilwal. During the detention, Ms. Abdigani used her son’s mobile phone to call 911 to report that she and her family were being held against their will at the border post. When officers realized that Ms. Abdigani was using the phone, they confiscated it and directed the 911 dispatcher not to send assistance. The officers then took the Wilwal-Abdiganis’ then 14-year-old son, M.O., to a separate room, patted him down, and asked him to remove his clothes, which he refused to do. The officers also searched the contents of M.O.’s phone. The officers refused to release Ms. Abdigani and the Wilwal children until they released Mr. Wilwal.
6. The Wilwal-Abdigani family would like to travel outside the United States again, but they fear that they will be abused by CBP or HSI officers when they seek to return home. They also fear that Defendants will disseminate or misuse information derived from their unlawful detention in North Dakota.
7. CBP and HSI officers violated the Wilwal-Abdigani family members’ Fourth Amendment right to be free from unreasonable seizures and searches. On
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information and belief, Defendants have adopted or authorized policies that permit, or failed to prevent, such violations of U.S. citizens’ rights. The officers’ conduct also constituted false arrest, false imprisonment, and tortious assault and battery. Defendants who are responsible for the watchlist and its unconstitutionally inadequate redress process also violated Mr. Wilwal’s right to due process under the Fifth Amendment. Plaintiffs bring this lawsuit to vindicate their rights under the Constitution, the Administrative Procedure Act, and the Federal Tort Claims Act.
PARTIES 8. Plaintiff Abdisalam Wilwal is a U.S. citizen and resident of Eagan, Minnesota. He is married to Plaintiff Sagal Abdigani. 9. Plaintiff Sagal Abdigani is a U.S. citizen and resident of Eagan, Minnesota. She is married to Plaintiff Abdisalam Wilwal. 10. Plaintiff M.O., son of Plaintiff Sagal Abdigani and stepson of Plaintiff Abdisalam Wilwal, is a U.S. citizen and resident of Eagan, Minnesota. He was 14 years old at the time of the events described in this complaint. 11. Plaintiff N.W., daughter of Plaintiffs Abdisalam Wilwal and Sagal Abdigani, is a U.S. citizen and resident of Eagan, Minnesota. She was eight years old at the time of the events described in this complaint. 12. Plaintiff A.W., son of Plaintiffs Abdisalam Wilwal and Sagal Abdigani, is a U.S. citizen and resident of Eagan, Minnesota. He was six years old at the time of the events described in this complaint.
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13. Plaintiff A.M., son of Plaintiffs Abdisalam Wilwal and Sagal Abdigani, is a U.S. citizen and resident of Eagan, Minnesota. He was five years old at the time of the events described in this complaint.
14. Defendant Elaine Duke is the Acting Secretary of the U.S. Department of Homeland Security (DHS) and has authority over all DHS personnel, policies, and procedures related to the treatment of American citizens entering the United States at border crossings and ports of entry. Defendant Duke is sued in her official capacity.
15. Defendant Kevin McAleenan is the Acting Commissioner of U.S. Customs and Border Protection, a component of the Department of Homeland Security. Defendant McAleenan has authority over CBP policies, procedures, and practices related to the treatment of American citizens entering the United States at border crossings and ports of entry. Defendant McAleenan is sued in his official capacity.
16. Defendant Thomas Homan is the Acting Director of U.S. Immigration and Customs Enforcement (ICE), a component of the Department of Homeland Security. Defendant Homan has responsibility for and oversight over ICE policies, procedures, and practices related to the detention and questioning of American citizens entering the United States at border crossings and ports of entry, including the conduct of Homeland Security Investigations officers. Defendant Homan is sued in his official capacity.
17. Defendant Derek Benner is the Acting Executive Associate Director of Homeland Security Investigations within U.S. Immigration and Customs Enforcement. Defendant Benner has responsibility for and oversight over HSI policies, procedures, and practices related to the detention and questioning of American citizens entering the
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United States at border crossings and ports of entry. Defendant Benner is sued in his official capacity.
18. Defendant Jefferson Sessions is the Attorney General of the United States and heads the Department of Justice, which oversees the Federal Bureau of Investigation (FBI). The FBI, in turn, administers the Terrorist Screening Center (TSC), which was established to consolidate the government’s counterterrorism-related watchlisting operations. Defendant Sessions is sued in his official capacity.
19. Defendant Christopher Wray is the Director of the FBI, which administers the TSC. Defendant Wray is sued in his official capacity.
20. Defendant Charles Kable, IV, is the Director of the TSC and is sued in his official capacity.
21. The United States of America is the appropriate Defendant under the Federal Tort Claims Act.
JURISDICTION AND VENUE 22. This Court has subject matter jurisdiction over Plaintiffs’ claims under 28 U.S.C. §§ 1331 and 1343(a) because this action arises under the Fourth and Fifth Amendments to the United States Constitution. 23. The Court may grant injunctive and declaratory relief for the constitutional violations alleged here pursuant to 5 U.S.C. § 702, which waives the sovereign immunity of the United States with respect to any action for injunctive relief under 28 U.S.C. § 1331; 28 U.S.C. § 2201, which confers jurisdiction to issue declaratory judgments; and/or Federal Rules of Civil Procedure 57 and 65.
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24. This Court has jurisdiction over Plaintiffs’ claims under the Federal Tort Claims Act pursuant to 28 U.S.C. § 1346(b).
25. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e) because Plaintiffs reside in this district.
FACTS 26. On March 27, 2015, Plaintiffs Abdisalam Wilwal and Sagal Abdigani took their four young children on a family trip from their home in Eagan, Minnesota, to visit Ms. Abdigani’s sister in Regina, Saskatchewan. The family drove from Eagan to the U.S.-Canada border crossing at Portal, North Dakota, where they sought to enter Canada. 27. Canadian border officers reviewed the family’s travel documents and questioned Mr. Wilwal about the family’s destination and the purpose of their trip. The officers cleared the family to enter Canada but told Mr. Wilwal that their records included a notation from U.S. authorities that might result in U.S. authorities questioning him more than usual when he sought to reenter the United States. 28. On their return, the family left Regina at approximately 4:00 a.m. on March 30, 2015, and drove to the same border crossing at Portal, North Dakota, arriving at approximately 6:00 a.m. Mr. Wilwal pulled the minivan up to a booth at the border crossing and handed a CBP officer his U.S. passport, Ms. Abdigani’s and M.O.’s U.S. passports, and U.S. birth certificates for N.W., A.M, and A.W. 29. The family’s identification documents were valid, and the family members were not carrying any illegal items when they arrived at the Portal border station. There was no reason to doubt that each member of the family was a U.S. citizen and was
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therefore admissible to the United States, and no reason to suspect that any member of the family was carrying illegal items on their persons or in their vehicle.
30. On information and belief, the CBP officers entered Plaintiffs’ names into the TECS System, a database that CBP uses for border screening and determinations regarding the admissibility of persons seeking to enter the United States.
31. Minutes after the family arrived at the CBP booth, CBP officers emerged from the border station with their handguns drawn and pointed at the van. One of the officers pointed his gun at Mr. Wilwal and yelled at him, “Don’t use weapons!” Mr. Wilwal quickly thrust his arms out of the van window to indicate that he had no weapons. As the officers surrounded the van, the officer in the booth yelled to the other officers that there were children inside the vehicle. The Wilwal-Abdigani family members were terrified, and the children began screaming and crying.
32. One of the officers ordered Mr. Wilwal out of the van at gunpoint. Mr. Wilwal was alarmed by and afraid of the officers’ display of force. He exited the van with his hands in the air and told the officers that the family had nothing illegal in the van. One of the officers handcuffed Mr. Wilwal’s hands behind his back. At no point did Mr. Wilwal resist the officers.
33. While walking him into the station, one officer asked, “Are you Pakistani?” Mr. Wilwal replied that he is not. The officer then asked, “Where are you from?” Mr. Wilwal responded that he is an American citizen. The agent asked where Mr. Wilwal was originally from, to which Mr. Wilwal responded that he is originally from Somalia.
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34. The CBP officer asked Mr. Wilwal if he is Muslim and accused him of being involved with terrorism. The accusation made Mr. Wilwal even more worried about his safety. He asked why the officer had made that accusation, and the officer responded, “We have information.”
35. The officers took Mr. Wilwal into a room in the border station and seated him in a chair while he was still handcuffed. Mr. Wilwal was worried about his family’s well-being. He asked the officers where his wife and children were and why the family was being detained. The officers refused to answer.
36. The CBP officers asked Mr. Wilwal no further questions. They left him, still handcuffed, alone in the room.
37. On information and belief, the CBP officers displayed and used force to handcuff and detain Mr. Wilwal because the TECS System indicated that Mr. Wilwal’s name appeared on a federal terrorism-related watchlist.
The Government’s Watchlisting System and Inadequacy of the Watchlisting Redress Process 38. The government maintains a watchlisting system to identify and track purported known or suspected terrorists. The Terrorist Identities Datamart Environment (TIDE) is the government’s central repository of names and information that feeds into the government’s consolidated master watchlist, called the Terrorist Screening Database. The TSC maintains the master watchlist, which includes names and limited biometric information. Unlike TIDE, it does not include any substantive information related to the reasons for individuals’ placement on the watchlist. 39. The TSC sends records from the watchlist to other government agencies, such as CBP and the Transportation Security Administration, that perform screening
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functions. The TSC also shares the watchlist with numerous foreign governments, including the Canadian government. CBP obtains access to the watchlist through its TECS System. On information and belief, searches by CBP officers for identities in the TECS System automatically include searches of the watchlist. Although CBP, HSI, and other agencies may use the records provided by the TSC, it is the TSC that exercises control over individuals’ placement on, or removal from, the master watchlist.
40. Placement of an individual on the master watchlist typically causes the individual to be referred for secondary inspection at border crossings and ports of entry.
41. According to the TSC, an individual’s placement on the watchlist must be based on a “reasonable suspicion” that the individual is a known or suspected terrorist. The TSC definition of a known terrorist encompasses individuals who have been indicted, arrested, charged, and/or convicted of a terrorism-related crime. The TSC’s definition of a suspected terrorist is far broader: “an individual who is reasonably suspected to be, or have been, engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and/or terrorist activities based on an articulable and reasonable suspicion.”
42. The “reasonable suspicion” standard and related watchlist criteria establish a vague, overbroad, and very low threshold for inclusion on the watchlist. Under the government’s Watchlisting Guidance, “concrete facts are not necessary” to satisfy the “reasonable suspicion” standard, and uncorroborated information of questionable or even doubtful reliability can serve as the basis for watchlisting an individual. Under the Guidance, a single social media post or anonymous letter can satisfy the “reasonable suspicion” standard. These loose criteria give officers discretion to rely on rumor,
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innuendo, or false statements in placing people on the watchlist, and the criteria significantly increase the likelihood that the watchlist includes people who are neither known nor appropriately suspected terrorists.
43. The TSC has also failed to ensure that individuals who do not meet these loose criteria are not placed on the watchlist or are promptly removed from it. In 2013 alone, agencies nominated 468,749 individuals to the watchlist, and the TSC rejected only approximately one percent of those nominations. Government documents show that as of 2014, nearly half the people on the watchlist had no recognized terrorist-group affiliation. The Inspector General of the Department of Justice has criticized the Terrorist Screening Center for employing weak quality assurance mechanisms and for failing to remove people from the watchlist when information did not support their placement on it. Public reports also confirm that the government has placed or retained people on government watchlists as a result of human error.
44. As of June 2016, TIDE included approximately 1.5 million people, and the master watchlist included approximately one million people.
45. The government entities involved in maintaining and implementing the watchlisting system, including Defendants, have not provided watchlisted people with a fair and effective mechanism through which to challenge their placement on the master watchlist and obtain redress for its consequences.
46. An individual who seeks to challenge placement and the consequences of placement on a watchlist may submit a standard form to the DHS Traveler Redress Inquiry Program (DHS TRIP). DHS TRIP transmits the redress petition to the TSC, which determines whether any action should be taken regarding the individual’s
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watchlisting status. The TSC is the final arbiter of whether the petitioning individual is retained on or removed from the master watchlist.
47. Once the TSC makes a final determination regarding an individual’s status on the watchlist, it advises DHS TRIP that it has completed its process. DHS TRIP then responds to the individual with a letter that does not confirm or deny whether the person is in fact watchlisted, or whether any watchlist records relating to the person exist. The letter does not provide any notice of the basis for placement on a terrorist watchlist. It does not state how the government has resolved the redress petition, or specify whether the person will experience similar problems related to placement on the watchlist in the future. At no point in the process can an individual appear in person before a neutral decision maker to challenge placement on the watchlist or its consequences.
48. The government’s official policy is to refuse to confirm or deny any given individual’s placement on the master watchlist. Nevertheless, individuals can become aware of their placement on the watchlist during the course of their travel experiences. Aspects of Mr. Wilwal’s experience before and after his attempt to cross the border on March 30, 2015 reliably indicate that he has been placed on the watchlist. Those indications include: (1) Canadian border officers informed him that U.S. authorities had included a notation that would result in additional questioning; (2) CBP officers forcefully detained him after searching the TECS system for his name and biometric information; (3) a CBP officer told Mr. Wilwal during the detention that CBP had “information” indicating that Mr. Wilwal was involved with terrorism; (4) a DHS employee later told Mr. Wilwal that his name appeared on a watchlist; and (5) an ICE “Report of Investigation” obtained through a Privacy Act request and attached hereto as
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Exhibit A states that the March 30, 2015 detention of Mr. Wilwal was “due to a confirmed subject record hit.” Exhibit A at 1.
49. Mr. Wilwal is not a known or an appropriately suspected terrorist. He has never engaged in conduct that would satisfy the government’s loose criteria for placement on the watchlist, and he does not know why his name and/or biometric information appeared on the watchlist. No government agency has provided him with any notice of the reasons for his placement on the watchlist or offered him any meaningful opportunity to contest his placement on the watchlist.
50. The CBP officers who detained and questioned Mr. Wilwal at the Portal border station had no information about why Mr. Wilwal’s name appeared on a terrorismrelated watchlist. On information and belief, the officers knew at most that Mr. Wilwal’s name and identifying information matched that of a person on the watchlist.
51. The inclusion of Mr. Wilwal’s name and/or limited biometric information on a terrorism-related watchlist did not constitute reasonable suspicion or probable cause to believe that Mr. Wilwal was engaged in any wrongdoing when he and his family sought to return to the United States on March 30, 2015.
Detention of Abdisalam Wilwal 52. At approximately 10:30 a.m., after more than four hours of detention with his hands restrained behind his back, Mr. Wilwal began to feel light-headed. He remained anxious about his family’s safety and had been given nothing to eat or drink since the beginning of his detention. Still handcuffed, he tried to stand up but passed out on the floor.
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53. When Mr. Wilwal regained consciousness, paramedics had arrived. They took Mr. Wilwal’s blood pressure and asked him if he wanted to be taken to the hospital, but he declined because he did not want to leave his family at the border facility. The CBP officers changed the position of the handcuffs so that Mr. Wilwal’s arms were restrained in front of his body. They gave him a small glass of water but no food.
54. Mr. Wilwal does not have a history of losing consciousness, nor did he have any medical condition at the time of the detention that could have caused him to lose consciousness.
55. The paramedics departed, and the CBP officers again left Mr. Wilwal alone and handcuffed in the room.
56. At about 3:00 p.m., approximately nine hours into Mr. Wilwal’s detention, the CBP officers told Mr. Wilwal that two HSI officers had arrived at the Portal station. On information and belief, the CBP officers at the Portal station had notified the HSI officers that they had detained the Wilwal family, and the CBP officers had continued to detain the entire Wilwal family at the HSI officers’ request. On information and belief, the HSI officers came to the Portal station from Minot, North Dakota.
57. Shortly before 4:00 p.m., the HSI officers began questioning Mr. Wilwal. They asked him for his name, address, and how long he had lived in the United States. Mr. Wilwal, who speaks English as a second language, was concerned that he might misunderstand the officers’ questions. He asked for an interpreter and for access to a lawyer. The HSI officers rejected both requests. One of the officers told Mr. Wilwal that if he wanted to leave, he would have to answer their questions.
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58. At no point did the HSI or CBP officers advise Mr. Wilwal that he had the right to contact an attorney or that he had the right not to answer questions or to remain silent.
59. The HSI officers asked Mr. Wilwal if he is Muslim, whether he is Sunni or Shia, and whether he attends a mosque. Mr. Wilwal responded that he is Muslim but not observant, and that he does not regularly attend a mosque.
60. The officers also asked Mr. Wilwal generally about any travel within or outside the United States; the purpose of the family’s trip to Canada; who owned the van that the family was driving on the trip; whether Mr. Wilwal was employed at the time; and where Mr. Wilwal obtained the money for the trip. Mr. Wilwal provided truthful answers to each of the questions.
61. The HSI officers questioned Mr. Wilwal for approximately 45 minutes. 62. At approximately 4:40 p.m., after Mr. Wilwal had been detained for over ten and a half hours, the HSI officers told the CBP officers that they could remove Mr. Wilwal’s handcuffs and that he could leave the border station. He and his family did so immediately. 63. At no time during the detention was there any basis to suspect that Mr. Wilwal was engaged in any criminal wrongdoing, and nothing about his detention and interrogation was reasonably likely to produce any information about whether he was engaged at the time in criminal wrongdoing. “After completing the interview, the HSI officers did not discover any derogatory information relating to” Mr. Wilwal. Exhibit A at 3.
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64. The CBP officers’ use of force to arrest and detain Mr. Wilwal, their detention of his family, their accusation that he was involved in terrorism, and the nearly 11-hour detention caused Mr. Wilwal extreme emotional distress. The officers’ conduct, and their failure to provide Mr. Wilwal with food and water, also caused him physical harm during the course of the detention, prompting the CBP officers to contact medical personnel.
Detention of Sagal Abdigani and the Wilwal-Abdiganis’ Minor Children 65. CBP officers detained Sagal Abdigani and the couple’s young children against their will for the duration of Mr. Wilwal’s detention. 66. Shortly after 6:00 a.m. on March 30, 2015, after CBP officers had handcuffed Mr. Wilwal outside the van and taken him into the border station, the remaining CBP officers—one in the booth and another who had come from the border station with his handgun drawn—asked Ms. Abdigani if she had a driver’s license. She responded that she did. An officer directed her to drive the van to the border station, which she did. Ms. Abdigani and the children were frightened and confused. N.W., A.W., and A.M. were screaming and crying. 67. Ms. Abdigani parked the van outside the station. The CBP officer then took the keys to the van from Ms. Abdigani, told her to leave her mobile phone in the van, and ordered her and the children out of the van and into the station. 68. CBP officers detained Ms. Abdigani and the children in the station, in an area that was cold, distressing the children further. 69. Early in CBP’s detention of Ms. Abdigani and the children, a CBP officer asked them whether they could speak or write Arabic. Ms. Abdigani asked the officer
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not to question her children, but the officer said that he could separate them and question M.O., her 14-year-old son, if he wanted to. Ms. Abdigani told the officer that she can speak and write Somali but not Arabic. The officer then asked her to write something in Somali, which she declined to do.
70. The CBP officers never questioned Ms. Abdigani or the children further. The officers never provided a reason for detaining Ms. Abdigani and the children.
71. After approximately an hour of detention, Ms. Abdigani asked a CBP officer if she could retrieve her mobile phone from the van and contact her sister in Canada or friends in Minnesota who were expecting the family to arrive that day, and who would become alarmed if they were unable to reach the family by phone. The officer denied the request and told Ms. Abdigani that she would not be permitted to use her phone.
72. Ms. Abdigani requested that she be allowed to drive the children to Eagan and then return for her husband because the children had school the next day. One of the officers said, “you’re all the same” and that no one in the family could leave the station. Ms. Abdigani asked if she could call her sister’s husband in Regina and have him pick the children up and take them back to Regina. The officer denied that request as well, again saying, “You’re all the same. You’re all detainees, including the children.” Ms. Abdigani asked the officers if they would call the children’s school or her family. They refused.
73. After several hours of detention, the children became very hungry, and Ms. Abdigani requested food for herself and the children. The CBP officers offered the children some candy. Ms. Abdigani found this troubling, as the candy was not only
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unhealthy but also insufficient to meet the children’s need for food. She asked the CBP officers if she could retrieve food from the family’s car, but they denied her request. After the family had been detained for approximately six hours, and after multiple requests for food, the CBP officers gave the children hamburgers but provided no food to Ms. Abdigani.
74. At about 11:00 a.m., after about five hours of detention, Ms. Abdigani realized that M.O. had his mobile phone with him in the border station. The officers had never directed M.O. to leave his phone in the car or turn it over to the officers.
75. Ms. Abdigani used the phone to call 911. On information and belief, because the phone lacked a SIM card, the call was routed to a dispatcher in the St. Paul area. Ms. Abdigani told the dispatcher that she and her family were being held against their will at the border station, and that they were afraid for their safety. The dispatcher tried to transfer the call to a dispatcher in North Dakota. However, one of the CBP officers then grabbed the phone away from Ms. Abdigani. The officer spoke with the dispatcher for about ten minutes and, on information and belief, convinced the dispatcher not to send assistance.
76. Shortly after the 911 call, a female CBP officer conducted a pat-down search of Ms. Abdigani.
77. Two male CBP officers took 14-year-old M.O. into a separate room and conducted a pat-down search of M.O. One of the officers demanded that M.O. take off his clothes, which M.O. refused to do.
78. M.O. did not consent to the search that the CBP officer conducted. Ms. Abdigani did not consent to any search of M.O. outside her presence.
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79. M.O. was humiliated, frightened, and embarrassed by the officers’ demand that he remove his clothes.
80. At no time during the detention of M.O. did any CBP officer at the Portal station have a reasonable basis for suspecting that M.O. was carrying contraband or any illegal item.
81. At no time during the detention was there any basis to suspect that Ms. Abdigani or any of the children were seeking to bring illegal items into the country or that they were engaged in any criminal wrongdoing, and nothing about their detention and search was intended or reasonably likely to produce any information about whether they were engaged in criminal wrongdoing or seeking to bring illegal items into the country.
82. On information and belief, the CBP officers detained Ms. Abdigani and her children solely because of their association with Mr. Wilwal. The association of Ms. Abdigani and the children with Mr. Wilwal did not constitute reasonable suspicion or probable cause to believe that they were or had been engaged in any wrongdoing.
83. During and after the detention, Ms. Abdigani and the children were scared, anxious, and confused. The CBP officers’ aggressive use of force to arrest and detain Mr. Wilwal, their detention of Ms. Abdigani and the children against their will for nearly 11 hours, their refusal to provide Ms. Abdigani and the children with adequate food, and their attempted strip search of M.O. caused Ms. Abdigani and the children significant emotional pain and distress. Having last seen Mr. Wilwal as he was handcuffed at gunpoint and taken into custody, they were extremely worried about his safety, and Ms. Abdigani became convinced that the officers had killed Mr. Wilwal. Ms. Abdigani and
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the children felt personally threatened by the CBP officers. Their fear grew as the time passed, and in the afternoon N.W. said to Ms. Abdigani, “maybe they’ll kill us after sunset.”
84. The CBP officers detained Ms. Abdigani and the children until approximately 4:40 p.m., when the officers released Mr. Wilwal. The family immediately drove to Eagan and arrived at their home at approximately 2:00 a.m. on March 31, 2015.
Aftermath of the Wilwal-Abdiganis’ Detention 85. On March 31, 2015, the same day that they arrived back in the Minneapolis area, Mr. Wilwal and Ms. Abdigani went to the FBI field office in Minneapolis to report what had happened to them at the Portal border station. An FBI employee suggested that they go to the DHS office in Minneapolis and make further inquiries there. 86. Mr. Wilwal and Ms. Abdigani went to an office housing DHS components in the Minneapolis area that same day. An employee there told them that she would try to find out why the incident had occurred and would get back to them with more information if possible. Mr. Wilwal called the office multiple times over the following days for further information. Two to three weeks after their initial visit, Mr. Wilwal received a voicemail from an administrative staff member at the DHS office. The staff member stated that the incident at the Portal border station likely occurred because Mr. Wilwal’s name appeared on a terrorist watchlist.
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87. Mr. Wilwal and Ms. Abdigani each submitted DHS TRIP petitions regarding the events of March 30, 2015. Over two years later, neither has received a final response from DHS TRIP as described in paragraph 42 above.
88. The Defendants have adopted or implemented policies or practices that permit, or failed to prevent, the CBP and HSI officers’ treatment of Plaintiffs on March 30, 2015.
89. Plaintiffs continue to experience stress and anxiety about the prospect that they will be subjected to lengthy and abusive detentions at border stations, airports, or ports of entry in the future. They also remain frightened of law enforcement officers. They have not attempted to travel outside the United States since March 30, 2015. All four children want to travel to Canada to see their cousins, but the family is afraid to do so. All four children have had frequent nightmares about the events of March 30, 2015.
90. Defendants created and continue to maintain records in CBP, HSI, and other databases regarding Plaintiffs’ border crossing on March 30, 2015. The ICE Report of Investigation reflects information maintained in the TECS system regarding the detention, including records obtained from a search of M.O.’s mobile phone. Exhibit A at 1. The Report also states that the HSI officers’ interrogation of Mr. Wilwal “was digitally recorded and will be maintained as government generated evidence,” and that Mr. Wilwal’s responses to the officers’ questions “were documented and will be maintained in the case file.” Id. at 3.
91. Plaintiffs are deeply concerned about the government’s use of the information it obtained during the detention. They are concerned that CBP and/or HSI will use the information collected during the border detention to expand the duration or
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scope of inspections or stops of the Plaintiffs at border stations, airports, or ports of entry in the future. They also worry that Defendants shared the information they collected on the Plaintiffs with other government agencies, such as the FBI, and that the Plaintiffs will be singled out again by government agencies on the basis of that information.
92. On February 24, 2017, Plaintiffs submitted administrative tort claims to CBP, seeking compensation for the injuries caused by the CBP officers’ wrongful conduct on March 30, 2015. CBP acknowledged receipt of the claims on March 9, 2017. Plaintiffs submitted amended administrative claims on July 11, 2017.
93. In undated letters sent on or around September 18, 2017, CBP denied each Plaintiff’s administrative claim and stated that Plaintiffs have the right to file federal claims challenging those denials.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF: Unconstitutional Seizure – Fourth Amendment to the U.S. Constitution
(Abdisalam Wilwal) 94. The arrest, detention, unnecessary and extended restraint, incarceration, and interrogation of Abdisalam Wilwal constituted an unreasonable seizure in violation of the Fourth Amendment to the U.S. Constitution.
SECOND CLAIM FOR RELIEF: Excessive Use of Force – Fourth Amendment to the U.S. Constitution
(Abdisalam Wilwal) 95. The arrest, detention, unnecessary and extended restraint, and incarceration of Abdisalam Wilwal constituted an excessive use of force that was unreasonable under the circumstances and a violation of the Fourth Amendment to the U.S. Constitution.
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96. The CBP officers’ use of excessive force against Abdisalam Wilwal caused him pain and physical injury that necessitated medical attention.
THIRD CLAIM FOR RELIEF: Unconstitutional Seizure – Fourth Amendment to the U.S. Constitution
(Sagal Abdigani, M.O., N.W., A.W., A.M.) 97. The detention and unnecessary and extended restraint of Sagal Abdigani, and each of the four children, M.O., N.W., A.W., and A.M., constituted an unreasonable seizure in violation of the Fourth Amendment to the U.S. Constitution.
FOURTH CLAIM FOR RELIEF: Violation of Procedural Due Process – Fifth Amendment to the U.S. Constitution
(Abdisalam Wilwal) 98. Mr. Wilwal was arrested, detained, incarcerated, and interrogated as a result of his placement on the master watchlist, and he is entitled to a constitutionally adequate redress process that affords him notice of the reasons for his placement on the watchlist and a meaningful opportunity to contest his continued placement on it. 99. Defendants’ actions in refusing to provide Abdisalam Wilwal with any notice of the reasons or basis for his placement on the master watchlist, and in refusing to provide him with a meaningful opportunity to challenge his placement on the watchlist and its consequences, violated Mr. Wilwal’s right to procedural due process under the Fifth Amendment to the U.S. Constitution. 100. By failing to provide Mr. Wilwal with a constitutionally adequate redress process, Defendants infringed or deprived him of protected liberty interests, including but not limited to his liberty interest in travel, entry into the United States, and freedom from unconstitutional seizure. Defendants have violated Mr. Wilwal’s constitutional rights
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without due process of law and placed him at imminent risk of suffering further harm absent the relief requested below.
FIFTH CLAIM FOR RELIEF: Violation of Substantive Due Process – Fifth Amendment to the U.S. Constitution
(Abdisalam Wilwal) 101. Because Abdisalam Wilwal is neither a known nor appropriately suspected terrorist, Defendants’ conduct in placing and retaining him on the master watchlist, and in arresting, detaining, incarcerating, and interrogating him on that basis, violated his right to substantive due process under the Fifth Amendment to the U.S. Constitution. 102. Defendants violated Mr. Wilwal’s constitutional rights, subjected him to injury that is unjustifiable by any government interest without due process of law, and placed him at imminent risk of suffering further harm absent the relief requested below.
SIXTH CLAIM FOR RELIEF: Violation of the Administrative Procedure Act
(All Plaintiffs) 103. Defendants’ actions in adopting or implementing policies or practices that permit, or failed to prevent, Defendants’ abuse of Plaintiffs, constituted final agency action within the meaning of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. 104. Defendants’ unlawful seizure, unnecessary and extended restraint, and search of the Plaintiffs, as set forth above, was arbitrary, capricious, an abuse of discretion, otherwise not in accordance with the law, contrary to constitutional rights, and outside the Defendants’ statutory authority. Defendants’ unlawful conduct has adversely affected Plaintiffs and placed them at imminent risk of suffering further harm absent the relief requested below.
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SEVENTH CLAIM FOR RELIEF: Violation of the Administrative Procedure Act
(Abdisalam Wilwal) 105. Defendants’ actions in refusing to provide Abdisalam Wilwal with a constitutionally adequate process for obtaining redress for his placement on the master watchlist, and in refusing to remove him from the watchlist, constituted final agency action within the meaning of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. 106. Defendants’ failure to provide Mr. Wilwal with notice of the reasons for his placement on the watchlist, and a meaningful opportunity to contest his continued retention on it and the consequences thereof, is arbitrary, capricious, an abuse of discretion, otherwise not in accordance with the law, and contrary to constitutional rights, and should be set aside as unlawful pursuant to 5 U.S.C. § 706. 107. Because Abdisalam Wilwal is neither a known nor appropriately suspected terrorist, Defendants’ conduct in placing and retaining him on the master watchlist, and in arresting, detaining, incarcerating, and interrogating him on that basis, is arbitrary, capricious, an abuse of discretion, otherwise not in accordance with the law, and contrary to constitutional rights, and should be set aside as unlawful pursuant to 5 U.S.C. § 706.
EIGHTH CLAIM FOR RELIEF: Federal Tort Claims Act – False Arrest/False Imprisonment
(All Plaintiffs) 108. The seizure, detention, and unnecessary and extended restraint of the Plaintiffs against their will by the CBP officers without adequate cause or lawful authority constituted false arrest and/or false imprisonment.
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109. Under the Federal Tort Claims Act, the United States of America is liable for the CBP officers’ tortious conduct.
NINTH CLAIM FOR RELIEF: Federal Tort Claims Act – Assault
(All Plaintiffs) 110. The CBP officers’ unnecessary and unlawful conduct in detaining the Plaintiffs at gunpoint, and their aggressive use of force to seize and detain Abdisalam Wilwal, placed the Plaintiffs in immediate apprehension of bodily harm and constituted tortious assault. 111. Under the Federal Tort Claims Act, the United States of America is liable for the CBP officers’ tortious conduct.
TENTH CLAIM FOR RELIEF: Federal Tort Claims Act – Battery
(Abdisalam Wilwal) 112. The CBP officers’ unnecessary and unlawful use of force to seize, arrest, handcuff, and detain Abdisalam Wilwal against his will constituted tortious battery. 113. Under the Federal Tort Claims Act, the United States of America is liable for the CBP officers’ tortious conduct.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court:
(a) Declare that Defendants have violated Plaintiffs’ rights under the Fourth and Fifth Amendments to the United States Constitution and the Administrative Procedure Act;
(b) Enter an injunction: a. enjoining Defendants from arresting, seizing, searching, or interrogating Abdisalam Wilwal because of his placement on a terrorism-related watchlist;
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b. enjoining Defendants from arresting, seizing, detaining, searching, or interrogating Sagal Abdigani, M.O., N.W., A.W., or A.M. because of their association with Abdisalam Wilwal;
c. requiring Defendants to provide Abdisalam Wilwal with notice of the reasons for his placement on the master watchlist and a meaningful opportunity to contest his continued retention on it;
d. requiring Defendants to remedy the constitutional and statutory violations identified above, including the removal of Abdisalam Wilwal from the master watchlist;
e. requiring Defendants to expunge from government databases or otherwise destroy all information unlawfully obtained from Plaintiffs;
(c) Award Plaintiffs compensatory damages and prejudgment interest for the injuries they sustained as a result of the wrongful conduct of the CBP officers on March 30, 2017;
(d) Award Plaintiffs reasonable attorneys’ fees and costs; and
(e) Grant all other relief the Court deems appropriate.
Respectfully submitted,
Hugh Handeyside (admitted pro hac vice) Hina Shamsi (admitted pro hac vice) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500 (phone) (212) 549-2583 (facsimile) hhandeyside@aclu.org hshamsi@aclu.org
Teresa Nelson (No. 269736) John Gordon (No. 363237) Ian Bratlie (No. 319454) American Civil Liberties Union Foundation of Minnesota 2300 Myrtle Avenue, Suite 180 Saint Paul, MN 55114 (651) 645-4097 (phone) (651) 647-5948 (facsimile) tnelson@aclu-mn.org
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Dated: October 12, 2017

jgordon@aclu-mn.org ibratlie@aclu-mn.org
Robins Kaplan LLP
/s/ Randall Tietjen Randall Tietjen (No. 214474) Amira A. ElShareif (No. 0395348) Sarah E. Friedricks (No. 0397466) 800 LaSalle Avenue Suite 2800 Minneapolis, MN 55402 (612) 349-8500 RTietjen@RobinsKaplan.com AElShareif@RobinsKaplan.com SFriedricks@RobinsKaplan.com
Counsel for Plaintiffs

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Abdisalam Wilwal, and Sagal Abdigani, individually and on behalf of their minor children, M.O., N.W., A.W., and A.M.,
Plaintiffs,
v.
Kirstjen Nielsen, Secretary of the Department of Homeland Security; Kevin McAleenan, Acting Commissioner of U.S. Customs and Border Protection, in his official capacity; Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity; Derek N. Benner, Acting Executive Associate Director of Homeland Security Investigations, U.S. Immigration and Customs Enforcement, in his official capacity; Jefferson B. Sessions, Attorney General of the United States, in his official capacity; Christopher A. Wray, Director of the Federal Bureau of Investigation, in his official capacity; Charles H. Kable, IV, Director of the Terrorist Screening Center, in his official capacity; and the United States of America,
Defendants.

Civil No. 17-2835 (DWF/DTS)
MEMORANDUM OPINION AND ORDER

Hugh Handeyside, Esq., and Hina Shamsi, Esq., American Civil Liberties Union Foundation; Teresa J. Nelson, Esq., John B. Gordon, Esq., and Ian Bratlie, Esq., American Civil Liberties Union Foundation of Minnesota; and Randall Tietjen, Esq., Amira A. ElShareif, Esq., and Sarah E. Friedricks, Esq., Robins Kaplan LLP, counsel for Plaintiffs.
Erica McDonald, United States Attorney, and Erin M. Secord, Assistant United States Attorney, United States Attorney’s Office; and Chad A. Readler, Esq., John R. Tyler,

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Esq., Michael L. Drezner, Esq., James G. Touhey, Jr., Esq., Rupert Mitsch, Esq., and Paul D. Stern, Esq., United States Department of Justice, counsel for Defendants.
INTRODUCTION This lawsuit arises out of a family’s detention at a United States-Canada border crossing. Plaintiffs Abdisalam Wilwal, Sagal Abdigani, and their four children ages 5, 6, 8, and 14 (collectively, “Plaintiffs”) bring this lawsuit claiming their detention was unlawful and assert various constitutional, Administrative Procedure Act (“APA”), and Federal Tort Claims Act (“FTCA”) claims against the Government. This matter is before the Court on the Government’s motion to dismiss. (Doc. No. 37.) For the reasons discussed below, the Court grants the Government’s motion to dismiss Mr. Wilwal’s substantive due process claim. The Court otherwise denies the Government’s motion.
BACKGROUND Unless otherwise noted, the facts set forth are drawn from Plaintiffs’ amended complaint (Doc. No. 25 (“Am. Compl.”)), and accepted as true for the purposes of considering the motion to dismiss. Plaintiffs are United States citizens residing in Eagan, Minnesota. (Am. Compl. ¶¶ 2, 26.) On March 30, 2015, Plaintiffs were returning to Minnesota from a trip to Regina, Saskatchewan. (Id. ¶¶ 26, 28.) At the checkpoint in Portal, North Dakota, U.S. Customs and Border Protection (“CBP”) officers detained Plaintiffs for over ten hours because Mr. Wilwal’s name appeared on a terrorism-related watchlist maintained by the Terrorist Screening Center (“TSC”). (Id. ¶¶ 34, 37, 52-84.)
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I. Plaintiffs’ Allegations On March 27, 2015, Plaintiffs drove from their home in Eagan, Minnesota, to visit
relatives in Regina, Saskatchewan. (Id. ¶ 26.) At the border crossing in Portal, North Dakota, Canadian border officers told Mr. Wilwal that their records indicated that Mr. Wilwal might face additional questioning when attempting to reenter the United States. (Id. ¶ 27.) When Plaintiffs returned around 6:00 a.m. on March 30, they presented a CBP officer with the family’s U.S. passports and birth certificates. (Id. ¶¶ 28-29.) After a few minutes, CBP agents approached Plaintiffs’ van with their guns drawn and directed at the van carrying the parents and four young children, and ordered Mr. Wilwal out of the van. (Id. ¶¶ 31-32.) The agents handcuffed Mr. Wilwal and escorted him into the station. (Id. ¶¶ 32-33.) While escorting Mr. Wilwal into the station, one of the CBP agents accused him of being involved in terrorism. (Id. ¶ 34.) Mr. Wilwal asked the agent why he made that accusation; the agent responded, “We have information.” (Id.)
Inside the station, the agents took Mr. Wilwal into a room, sat him in a chair, and left him handcuffed. (Id. ¶ 35.) Around 10:30 a.m., and without any food or water, Mr. Wilwal passed out on the floor of the room where he was being detained. (Id. ¶ 52.) After paramedics evaluated Mr. Wilwal, the agents changed the position of the handcuffs so that Mr. Wilwal’s arms were in front of his body. (Id. ¶ 53.) The agents also gave Mr. Wilwal water. (Id.)
Around 3:00 p.m., the agents informed Mr. Wilwal that HSI officers had arrived from Minot, North Dakota. (Id. ¶ 56.) Beginning around 4:00 p.m., the HSI officers
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questioned Mr. Wilwal for approximately 45 minutes. (Id. ¶ 57, 61.) The HSI officers denied Mr. Wilwal’s requests for an interpreter and a lawyer. (Id. ¶ 57.) The HSI officers asked Mr. Wilwal if he is Muslim, whether he is Sunni or Shia, and whether he attends a mosque. (Id. ¶ 59.) Additionally, the HSI officers questioned Mr. Wilwal about Plaintiffs’ trip to Canada. (Id. ¶ 60.) Around 4:40 p.m., after being detained over 10 hours, with no explanation, the HSI officers told the agents that they could remove Mr. Wilwal’s handcuffs and that he could leave the station. (Id. ¶ 62.)
Ms. Abdigani and the four young children were also detained for over ten hours. (Id. ¶ 65.) While the agents escorted Mr. Wilwal into the station, they directed Ms. Abdigani to park the van outside the border station. (Id. ¶¶ 66-67.) The agents then told Ms. Abdigani to leave her cell phone in the van and directed Ms. Abdigani and the children into the station. (Id. ¶¶ 67-68.)
After approximately one hour, Ms. Abdigani asked an agent if she could retrieve her cell phone from the van and contact family or friends. (Id. ¶ 71.) The agent denied the request. (Id.) Ms. Abdigani also asked if the children could go home to Eagan, either via her driving them or her brother-in-law coming to pick them up. (Id. ¶ 72.) The agent denied that request also, stating: “You’re all detainees, including the children.” (Id.)
Around 11:00 a.m., Ms. Abdigani used her 14-year-old son’s, M.O., cell phone to call 911. (Id. ¶¶ 74-75.) M.O. had not been told to leave his cell phone in the van. (Id. ¶ 74.) Ms. Abdigani told the 911 dispatcher that she and her family were being held against their will at the border station and were afraid for their safety. (Id. ¶ 75.) One of the agents then took the cell phone, and after approximately ten minutes, convinced the
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911 dispatcher to not send assistance. (Id.) After the 911 call, the agents conducted pat-down searches of Ms. Abdigani and M.O. (Id. ¶¶ 76-79.) To search M.O., the agents took him into a separate room, patted him down, and then ordered him to take off his clothes for a strip search. (Id. ¶ 77.) M.O. refused to take off his clothes, and neither he nor Ms. Abdigani consented to the searches. (Id. ¶¶ 77-78.)
Apart from asking Ms. Abdigani to write something in Somali, the agents never questioned Ms. Abdigani and the children, nor gave them a reason for being detained. (Id. ¶¶ 69-70.) Plaintiffs were released and left the station just after 4:40 p.m. (Id. ¶ 84.)
On March 31, 2015, the same day that Plaintiffs arrived home, Mr. Wilwal and Ms. Abdigani went to the FBI and DHS offices to report what had happened to them at the border. (Id. ¶¶ 85-86.) An employee at the DHS office said she would get back to them with more information if possible. (Id. ¶ 86.) Two or three weeks later, an administrative staff member at the DHS office left Mr. Wilwal a voicemail stating that the incident at the border likely occurred because Mr. Wilwal’s name appeared on a terrorist watchlist. (Id. ¶ 86.) II. Statutory and Regulatory Framework
The Terrorist Screening Center (“TSC”), “a multi-agency center administered by the FBI,” has the duty to manage and operate the Terrorist Screening Database (the “Watchlist”). See Terrorist Screening Center, https://www.fbi.gov/about/leadership-andstructure/national-security-branch/tsc (last visited September 25, 2018). “The watchlist is a single database that contains sensitive national security and law enforcement information concerning the identities of those who are known or reasonably suspected of
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being involved in terrorist activities.” Id. “The TSC uses the watchlist to support front-line screening agencies in positively identifying known or suspected terrorists who are attempting to . . . enter the country.” Id. The procedure for submission of identity information for inclusion on the Watchlist is known as the “watchlist nomination process.” Terrorist Screening Center, Frequently Asked Questions at 2 (last updated Jan. 2017) (“TSC FAQ”), https://www.fbi.gov/file-repository/terrorist-screening-centerfrequently-asked-questions.pdf. Government agencies submit identity information for individuals who may qualify for inclusion and submit those nominations to the National Counterterrorism Center (“NCC”). Id. If the NCC finds the information credible and sufficient, then it passes the information to the TSC for final verification and entry into the Watchlist. Id.
Congress required the Transportation Security Administration (“TSA”) to provide a redress system for individuals who have questions concerning, or want to appeal their alleged Watchlist status. Id.; see also 49 U.S.C. § 44903(j)(2)(C)(iii)(I). Because of this mandate, DHS established and administers the Traveler Redress Inquiry Program (“DHS TRIP”), through which individuals can submit a redress inquiry. 49 C.F.R. § 1560.205(b). Upon receipt of a redress inquiry, TSA “will review all the documentation and information requested from the individual, correct any erroneous information, and provide the individual with a timely written response.” 49 C.F.R. § 1560.205(d).
Mr. Wilwal and Ms. Abdigani submitted DHS TRIP redress inquiries, but neither has received a final response from DHS TRIP. (Am. Compl. ¶ 87.)
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III. Procedural History On February 24, 2017, Plaintiffs submitted administrative tort claims to CBP
based on the injuries sustained during their detention. (Id. ¶ 92.) Plaintiffs amended their claims on July 11, 2017. (Id.) In mid-September 2017, CBP denied all of Plaintiffs’ administrative claims.
Plaintiffs brought this suit on July 13, 2017 and filed an amended complaint on October 12, 2017. Mr. Wilwal asserts the following claims against the Government: (1) unconstitutional seizure and excessive use of force under the Fourth Amendment (Counts I and II); (2) violation of Mr. Wilwal’s procedural and substantive due process rights under the Fifth Amendment (Count IV and V); (3) violation of the APA (Count VII); and (4) battery, for which Plaintiffs assert the Government is liable under the FTCA (Count X). (Am. Compl. ¶¶ 94-96, 98-102, 105-07, 112-13.) Sagal Abdigani, M.O., N.W., A.W. and A.M. separately assert a claim for unconstitutional seizure under the Fourth Amendment (Count III). (Id. ¶ 97.) Plaintiffs collectively assert the following claims: (1) violation of the APA (Count VI); (2) false arrest/imprisonment and assault, for which Plaintiffs assert the Government is liable under the FTCA (Counts VIII and IX). (Id. ¶¶ 108-09, 110-11.)
Plaintiffs seek a declaratory judgment that “Defendants have violated Plaintiffs’ rights under the Fourth and Fifth Amendments to the United States Constitution and the Administrative Procedure Act[.]” (Id. at 26.) Plaintiffs also seek injunctive relief (1) “enjoining Defendants from arresting, seizing, searching, or interrogating Abdisalam Wilwal because of his placement on a terrorism-related watchlist”; (2) enjoining
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Defendants from arresting, seizing, detaining, searching, or interrogating Sagal Abdigani,

M.O., N.W., A.W., or A.M. because of their association with Abdisalam Wilwal”;

(3) “requiring Defendants to provide Abdisalam Wilwal with notice of the reasons for his

placement on the master watchlist and a meaningful opportunity to contest his continued

retention on it”; (4) requiring Defendants to remedy the constitutional and statutory

violations [alleged in the amended complaint], including the removal of Abdisalam

Wilwal from the master watchlist”; and (5) requiring Defendants to expunge from

government databases or otherwise destroy all information unlawfully obtained from

Plaintiffs[.]” (Id. at 26-27.) The Government now moves to dismiss Plaintiffs’ Amended

Complaint in its entirety. (Doc. Nos. 37 (“Motion”), 38 (“Gov’t Memo.”).)

I. Legal Standard

DISCUSSION

A. Rule 12(b)(1) A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the Court’s subject matter jurisdiction. To survive a motion to dismiss for lack of subject matter jurisdiction, the party asserting jurisdiction has the burden of proving jurisdiction. V S Ltd. P’ship v. Dep’t of Hous. & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000) (citation omitted). “Subject-matter jurisdiction is a threshold requirement which must be assured in every federal case.” Kronholm v. F.D.I.C., 915 F.2d 1171, 1174 (8th Cir. 1990). A motion to dismiss for lack of subject matter jurisdiction may challenge a plaintiff’s complaint either on its face or on the factual truthfulness of its
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averments. Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990) (citations omitted). When a defendant brings a facial challenge—a challenge that, even if truthful, the facts alleged in a claim are insufficient to establish jurisdiction—a court reviews the pleadings alone, and the non-moving party receives the same protections as it would defending against a motion brought pursuant to Rule 12(b)(6). Id. (citation omitted). In a factual challenge to jurisdiction, the court may consider matters outside the pleadings, and the non-moving party does not benefit from the safeguards of Rule 12(b)(6). Id. at 728-30 n.4 (citations omitted) (holding that on a Rule 12(b)(1) motion challenging subject-matter jurisdiction, the court “has authority to consider matters outside the pleadings”).
B. Rule 12(b)(6) In deciding a motion to dismiss under Rule 12(b)(6), a court assumes all facts in the complaint to be true and construes all reasonable inferences from those facts in the light most favorable to the complainant. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). In doing so, however, a court need not accept as true wholly conclusory allegations, Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal conclusions drawn by the pleader from the facts alleged, Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). A court deciding a motion to dismiss may consider the complaint, matters of public record, orders, materials embraced by the complaint, and exhibits attached to the complaint. See Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).
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To survive a motion to dismiss, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a complaint need not contain “detailed factual allegations,” it must contain facts with enough specificity “to raise a right to relief above the speculative level.” Id. at 555. As the Supreme Court reiterated, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” will not pass muster under Twombly. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555.) In sum, this standard “calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim].” Twombly, 550 U.S. at 556.
C. Rule 12(b)(7) and Rule 19 A court reviewing a motion to dismiss under Rule 12(b)(7) “accept[s] the complaint’s allegations as true” and may consider matters beyond the pleadings. Omega Demolition Corp. v. Hays Grp., Inc., 306 F.R.D. 225, 227 (D. Minn. 2015). The party seeking dismissal bears the burden of demonstrating that the complainant failed to join a necessary party to the lawsuit under Rule 19. Id. II. Standing As a preliminary matter, the Government argues that Plaintiffs lack Article III standing, claiming that “[a] single, allegedly delayed border crossing . . . does not provide Plaintiffs with standing to seek future injunctive and declaratory relief.” (Gov’t Memo. at 8.) Specifically, the Government argues that Plaintiffs’ “allegations are insufficient to establish a certainly impending future injury” (id. at 11), and that Plaintiffs must allege more than “a vague desire to travel internationally at some point in the future” (id. at 12).
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Because Article III standing is jurisdictional, the Court first considers the Government’s standing argument. See Spokeo v. Robins, __ U.S. __, 136 S. Ct. 1540, 1547 (2016).
“The party invoking federal jurisdiction bears the burden of establishing” standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). The burden corresponds with the degree of evidence required at the relevant stage of litigation. Id. “Where . . . a case is at the pleading stage, the plaintiff must ‘clearly . . . allege facts demonstrating’ each element” of standing. Spokeo, 136 S. Ct. 1540 at 1547 (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). However, at this stage, “general factual allegations of injury . . . may suffice.” Lujan, 504 U.S. at 561; see also Iowa League of Cities v. E.P.A., 711 F.3d 844, 869 (8th Cir. 2013).
Article III permits federal courts to intervene only in “Cases” or “Controversies.” U.S. Const., art. III., § 2, cl. 1. The standing doctrine serves to “identify those disputes which are appropriately resolved through the judicial process.” Susan B. Anthony List v. Driehaus, __ U.S. __, 134 S. Ct. 2334, 2341 (2014) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130 (1992)). To have standing, Plaintiffs must demonstrate that they have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S. Ct. at 1547; see Lujan, 504 U.S. at 560-61. The injury-in-fact requirement requires Plaintiffs to demonstrate that they have experienced “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks and citations omitted). If Plaintiffs lack standing, “the district court has
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no subject-matter jurisdiction” and must dismiss the case. Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir. 2002).
A plaintiff seeking injunctive relief must show that he “faces a threat of ongoing or future harm.” Park v. Forest Serv. of the United States, 205 F.3d 1034, 1037 (8th Cir. 2000). “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974). Likewise, a plaintiff’s speculation that a future injury may occur is not sufficient to warrant injunctive relief. Id. at 497. A plaintiff must show that the threat of injury is “real and immediate.” Id. at 496.
The Supreme Court has explained that “[w]hen the suit is one challenging the legality of government action or inaction” and “the plaintiff is himself an object of the action (or forgone action) at issue . . . , there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.” Lujan, 504 U.S. at 561-62; see also Iowa League of Cities, 711 F.3d at 871. To establish redressability, however, the plaintiff must show that it is “more than merely speculative that the relief requested would have any effect to redress the harm to the plaintiff.” Young Am. Corp. v. Affiliated Comput. Servs., Inc., 424 F.3d 840, 845 (8th Cir. 2005) (quoting Hall v. LHACO, Inc., 140 F.3d 1190, 1196 (8th Cir. 1998)).
Plaintiffs’ allegations, taken as true at this stage of the case, plausibly allege concrete injuries-in-fact. Numerous courts have adopted a presumption that “a traveler’s subjection to heightened searches while entering the United States can be an indicator
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than an individual is on a terrorist watchlist.” Shearson v. Holder, 725 F.3d 588, 592 (6th Cir. 2013); see also Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 992-93 (9th Cir. 2012). Here, the CBP officers detained Mr. Wilwal and his family for nearly eleven hours when they crossed the border in March 2015. (Am. Compl. ¶¶ 34, 37, 52-84.) Plaintiffs allege that one of the CBP officers accused Mr. Wilwal of being involved with terrorism based on “information” available to the CBP officers. (Id. ¶¶ 33-34.) Plaintiffs also allege that after contacting the FBI and DHS, a DHS employee left a voicemail for Mr. Wilwal explaining that CBP officers likely detained Plaintiffs because Mr. Wilwal’s name appeared on a terrorism watchlist. (Id. ¶ 86.) Finally, at this time, the Government neither admits nor denies that Mr. Wilwal is on a watchlist. Taken together, these allegations support an inference that Plaintiffs were subjected to a heightened search because Mr. Wilwal’s name appeared on the watchlist.
The Court also concludes that Plaintiffs’ allegations of future harm are sufficiently concrete despite omitting specific plan or dates of future travel. Courts do not require plaintiffs to engage in international travel when they have experienced difficulties at the border and reasonably expect the same difficulties when returning to the United States from future travel. See Hernandez v. Cremer, 913 F.2d 230, 234 (5th Cir. 1990) (finding “a reasonable expectation that [the plaintiff] will exercise his right to travel,” even though the plaintiff did not want to risk being denied entry to the United States a second time”); Mohamed v. Holder, 266 F. Supp. 3d 868, 875 (E.D. Va. 2017) (“Plaintiffs’ decision not to engage in international travel because of the difficulties he reasonably expects to encounter upon return to the United States is sufficient to demonstrate standing.”). Here,
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Plaintiffs have expressed a desire to travel internationally, but fear that they will experience difficulties like those they experienced on March 30, 2015. It is reasonable to infer from Plaintiffs’ allegations that these Plaintiffs will engage in international travel again in the future, especially given their previous trip to Canada and their specific desire to visit family again in Canada. See Suhre v. Haywood Cty., 131 F.3d 1083, 1088 (4th Cir. 1997) (“[P]ast injury [i]s probative of likely future injury.”); Alasaad v. Nielsen, Civ. No. 17-11730, 2018 WL 2170323, at *11 (D. Mass. May 9, 2018) (concluding the plaintiffs sufficiently alleged actual or imminent injury based on the plaintiffs’ “prior travel abroad and professional backgrounds that might warrant future travel”).
Additionally, Plaintiffs have plausibly alleged that expungement of their information would afford some redress for the injuries caused by their detention. Specifically, Plaintiffs have plausibly demonstrated that the Government continues to maintain digital records from the March 30, 2015 detention, including a digital recording of the HSI officers interrogating Mr. Wilwal and records obtained from a search of M.O.’s cell phone. (Am. Compl. ¶ 90, Ex. A.)1 Contrary to the Government’s argument, courts recognize that expungement of records obtained during an illegal search and seizure is a valid equitable request for relief. Tabbaa v. Chertoff, 509 F.3d 89, 96 (2d Cir. 2007). This is particularly appropriate at the motion to dismiss stage because “the potential avenues for redress depend on how a particular plaintiff’s injury shows itself” and include a “range of available remedies.” Hassan v. City of N.Y., 804 F.3d 277,
1 The Court will consider the ICE Report of Investigation, which Plaintiffs attached as Exhibit A to the Amended Complaint. See Porous Media Corp., 186 F.3d at 1079.
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293-94 (3d Cir. 2015). At this early stage of the litigation, the Court will exercise its equitable discretion to deny the Government’s motion to dismiss on the basis that Plaintiffs lack standing to seek expungement. See United States v. Meyer, 439 F.3d 855, 861 (8th Cir. 2006) (describing the district court’s authority to consider expungement requests based on unlawful arrests or convictions).
In sum, the Court concludes that Plaintiffs have adequately established standing to seek prospective and injunctive relief. With respect to each claim, Plaintiffs allege particular, concrete harms to their legally protected interests which are caused by Defendants and likely to be redressed by the requested relief. III. Subject Matter Jurisdiction
The Government also argues that the United States Courts of Appeals have exclusive jurisdiction to consider Plaintiffs’ challenge to the adequacy of the redress procedures provided by DHS TRIP. (Gov’t Memo. at 14.) Section 46110 provides the courts of appeals with exclusive jurisdiction to review TSA orders. 49 U.S.C. § 46110(a). “[T]he court has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order . . . .” Id. § 46110(c). Courts have concluded, however, that TSC--not TSA or DHS—is the “sole entity with . . . the authority to remove” individuals from the Watchlist. Latif v. Holder, 686 F.3d 1122, 1129 (9th Cir. 2012); see Ege v. Dep’t of Homeland Sec., 784 F.3d 792, 795 (D.C. Cir. 2015) (quoting Latif). And although the Eighth Circuit has not addressed this question directly, it has observed that review under Section 46110 is “quite narrow” and “is limited to TSA’s final orders.” Robinson v. Napolitano, 689 F.3d 888, 892 (8th Cir. 2012).
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Here, Plaintiffs challenge the redress process relating to Mr. Wilwal’s alleged placement on the Watchlist. Plaintiffs argue that because the redress process is controlled by TSC and not TSA, Section 49110 does not deprive this Court of jurisdiction. The Court agrees. Plaintiffs seek “notice of the reasons for [Mr. Wilwal’s] placement on the master watchlist.” (Am. Compl. at 27.) As explained by the Ninth and D.C. Circuits:
Because “TSC—not TSA—actually reviews the classified intelligence information about the travelers and decides whether to remove them from the List” and “established the policies governing that stage of the redress process,” we agree that [the court of appeals] cannot, on section 46110 review, provide relief to an individual included . . . in the [Watchlist] by “simply amending, modifying, or setting aside TSA’s orders or by directing TSA to conduct further proceedings.” Ege, 784 F.3d at 795-96 (quoting Latif, 686 F.3d at 1128-29) (internal citations omitted). The main case the Government relies on, Mokdad v. Lynch, does not compel a different result. 804 F.3d 807, 811-13 (6th Cir. 2015). In Mokdad, the Sixth Circuit concluded that a procedural challenge to the DHS TRIP redress process constituted a challenge to a final TSA order, and that TSA was therefore “a required party to [the plaintiff’s] litigation about the adequacy of the redress procedures.” Id. at 811-12. The Sixth Circuit declined to address, however, “whether § 46110 would deprive the district court of subject-matter jurisdiction over [the plaintiff’s] claims challenging the adequacy of the redress process, including any broad constitutional claims, if he were to file a new suit naming TSA as a defendant.” Id. at 812. Unlike the plaintiff in Mokdad, here, the Plaintiffs have named DHS as a defendant, of which TSA is a component. The concerns present in Mokdad are therefore not present here.
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Based on the foregoing, the Court concludes that Section 46110 does not deprive this Court of subject-matter jurisdiction. IV. Rule 12(b)(6) Analysis
A. Fourth Amendment – Unconstitutional Seizure (Counts I & III) The Government first moves to dismiss Plaintiffs’ claims alleging that the March 30, 2015 detention “constituted an unreasonable seizure in violation of the Fourth Amendment to the U.S. Constitution.” The Fourth Amendment provides, in relevant part, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause . . . .” U.S. Const. amend. IV. “[T]he Fourth Amendment’s balance of reasonableness is qualitatively different at the international border than in the interior” due to the government’s interest in protecting “the integrity of the border” from the entry of unwanted persons and contraband into this country, as well as individuals’ lessened privacy interests when crossing international borders. United States v. Montoya de Hernandez, 473 U.S. 531, 537-40 (1985); see also United States v. Flores-Montano, 541 U.S. 149, 152-53 (2004) (noting the government’s “paramount interest” in protecting its territorial integrity from “unwanted persons and effects”). As a result, there is a recognized border-search exception to the Fourth Amendment’s warrant and probable cause requirements, one that applies both to actual borders and their functional equivalents, such as international airports, and extends to both incoming and outgoing travelers. See, e.g., United States v. Udofot, 711 F.2d 831, 839-40 (8th Cir. 1983).
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Under the border-search exception, “[r]outine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant.” Montoya de Hernandez, 473 U.S. at 538; see also Udofot, 711 F.2d at 839 (“[T]he Government’s sovereign authority to protect itself justifies a warrantless search without probable cause of persons crossing the United States’ border and of their personal effects.”). Because the Government has a “longstanding right . . . to protect itself by stopping and examining persons and property crossing into this country,” such searches “are reasonable simply by virtue of the fact that they occur at the border.” Flores-Montano, 541 U.S. at 152-53 (quoting United States v. Ramsey, 431 U.S. 606, 616 (1977)). Although the Supreme Court has declined to decide whether non-routine border searches—those that highly intrude upon a person’s dignity and privacy or involve the destruction of property—require some level of suspicion, numerous lower courts have concluded that such searches must be supported by reasonable suspicion. See id. at 152, 155-56; Montoya de Hernandez, 473 U.S. at 541 n.4 (“[W]e suggest no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body cavity, or involuntary x-ray searches.”); United States v. Molina-Gomez, 781 F.3d 13, 19 (1st Cir. 2015) (explaining that non-routine border searches, such as those that are highly intrusive or destructive, require reasonable suspicion); United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006) (“Although routine border searches of a person’s belongings are made reasonable by that person’s decision to enter this country, more invasive searches, like strip searches, require reasonable suspicion.”).
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Whether a border search qualifies as routine or non-routine “often depends on the degree of invasiveness or intrusiveness associated with the search.” Molina-Gomez, 781 F.3d at 19 (quotation omitted). As with Terry stops, the duration and force involved in a detention are two factors in evaluating whether a detention at the border is non-routine. See Montoya de Hernandez, 473 U.S. at 541-42; see also United States v. Place, 462 U.S. 686, 709 (1983); United States v. Maltais, 403 F.3d 550, 556 (8th Cir. 2005) (“[A]n investigative detention may turn into an arrest if it ‘lasts for an unreasonably long time or if officers use unreasonable force.”). Courts also consider “the degree of fear and humiliation that the police conduct engenders,” whether law enforcement “isolat[ed] [the suspect] from others,” and whether the suspect was handcuffed. See United States v. Bloomfield, 40 F.3d 910, 917 (8th Cir. 1994).
Here, the Court concludes that Plaintiffs’ allegations concerning the detention state a plausible claim for a violation of Plaintiffs’ Fourth Amendment rights to be free from unconstitutional seizure. The Court notes that Plaintiffs’ allegations—in particular, that CBP agents approached Plaintiffs’ van with their guns drawn and ordered Mr. Wilwal out of the van, handcuffed Mr. Wilwal in front of his crying children, and subsequently detained the entire family for nearly 11 hours—could lead a reasonable factfinder to determine that Plaintiffs’ detention was unreasonable.
Based on the foregoing, the Court denies the Government’s motion to dismiss Counts I and III of the Amended Complaint.
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B. Fourth Amendment – Excessive Force (Count II) The Government moves to dismiss Mr. Wilwal’s claim alleging that the CBP agents used excessive force in detaining him. The Court evaluates excessive force claims under an objective-reasonableness test. Graham v. Connor, 490 U.S. 386, 394-95 (1989). In determining whether the use of force is “reasonable” under the Fourth Amendment, a court must balance “the nature and quality of the intrusion on the individual’s Fourth Amendment interests” against the government's interests at stake. Id. at 396 (citation omitted). The reasonableness of the use of force must be judged from the “perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” See id. The proper application of the Fourth Amendment “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. Courts also consider the result of the force in analyzing a claim for excessive force. Crumley v. City of St. Paul, 324 F.3d 1003, 1007 (8th Cir. 2003). Assuming without deciding that a plaintiff must demonstrate some minimum level of injury, the Eighth Circuit has ruled that the necessary level of injury required for a Fourth Amendment excessive force claim is “actual injury.” Lambert v. City of Dumas, 187 F.3d 931, 936 (8th Cir. 1999); Dawkins v. Graham, 50 F.3d 532, 535 (8th Cir. 1995). The Eighth Circuit has held that the following examples constitute “actual injury”: (1) “bruises and a facial laceration”; (2) “bruised knees and elevated blood pressure”;
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(3) “posttraumatic stress disorder”; or (4) a “single small cut of the lateral right eyelid and small scrapes of the right posterior knee and upper calf.” Lambert, 187 F.3d at 936 (citations omitted). However, the Eighth Circuit has ruled that “a de minimus . . . injury is insufficient to support a finding of a constitutional violation.” Crumley, 324 F.3d at 1007. Thus, not every push or shove violates the Fourth Amendment. Id.
Here, the Court concludes that Mr. Wilwal’s allegations are sufficiently plausible to state an excessive-force claim. As noted above, when arresting Mr. Wilwal, the CBP agents drew their guns on Mr. Wilwal, his wife, and his four young children even though Mr. Wilwal made no attempt to flee or resist the agents. The agents then handcuffed Mr. Wilwal and left him in handcuffs for nearly 11 hours. Mr. Wilwal also plausibly alleges that he was injured when he passed out in the detention room and had to receive medical attention. Under a totality of the circumstances, a reasonable factfinder could determine that the Government’s use of force was unreasonable. See Graham, 490 U.S. at 396 (noting that courts should evaluate excessive-force claims by paying “careful attention to the facts and circumstances of each particular case”).
Accordingly, the Court denied the Government’s motion to dismiss Count II of the Amended Complaint.
C. Procedural Due Process (Count IV) The Government moves to dismiss Mr. Wilwal’s claim that the Government’s refusal to provide him with any notice of the reasons or basis for his placement on the Watchlist violates his Fifth Amendment procedural due process rights. The Government specifically argues that Mr. Wilwal has failed to allege deprivation of a protected interest
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and that Mr. Wilwal only suffered a delay at the border, which is not a cognizable violation of the right to travel.
“To prevail on a Fourteenth Amendment . . . procedural due process claim, a plaintiff ‘must first demonstrate that he was deprived of life, liberty or property by government action.’” Triemert v. Wash. Cty., Civ. No. 13-1312, 2013 U.S. Dist. LEXIS 179067, at *31-32 (D. Minn. Nov. 18, 2013) (quoting Orr v. Larkins, 610 F.3d 1032, 1034 (8th Cir. 2010)), adopted by 2013 U.S. Dist. LEXIS 178294 (D. Minn. Dec. 19, 2013); see also Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake. A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ . . . or it may arise from an expectation or interest created by state laws or policies” (citations omitted)). A plaintiff must then show that the government deprived him of that interest without due process of law. Schmidt v. Des Moines Pub. Sch., 655 F.3d 811, 817 (8th Cir. 2011).
In the Amended Complaint, Mr. Wilwal alleges that the Government deprived him of his “liberty interest in travel, entry into the United States, and freedom from unconstitutional seizure.” (Am. Compl. ¶ 100.) For the reasons explained in the Court’s analysis of Mr. Wilwal’s unconstitutional-seizure claim, the Court concludes that Mr. Wilwal has plausibly alleged that the Government deprived him of his liberty interest in being free from unconstitutional seizure. The Court further concludes that Mr. Wilwal has sufficiently alleged, at the motion to dismiss stage, that the Government’s Watchlist
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redress procedures do not provide him constitutionally sufficient due process. Consequently, the Court denies the Government’s motion to dismiss Count IV of the Amended Complaint.
D. Substantive Due Process (Count V) The Government next moves to dismiss Plaintiffs’ substantive due process claim, arguing that Mr. Wilwal’s alleged placement on the watchlist does not implicate a fundamental right and is not conscience-shocking. (Gov’t Memo. at 25.) Plaintiffs argue that they have a fundamental right to reenter the United States upon returning from international travel. The Eighth Circuit has held that to state a claim for violation of substantive due process, a plaintiff “must demonstrate both that the [government’s] conduct was conscience-shocking, and that the [government] violated one or more fundamental rights that are deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Karsjens v. Piper, 845 F.3d 394, 408 (8th Cir. 2017) (internal quotation marks and citation omitted). Mr. Wilwal bases his substantive due process claim on his right to international travel. But the right to international travel is not a fundamental right: “The constitutional right of interstate travel is virtually unqualified. By contrast the ‘right’ of international travel has been considered to be no more than an aspect of the ‘liberty’ protected by the Due Process Clause of the Fifth Amendment . . . [and] can be regulated within the bounds of due process.” Califano v. Torres, 435 U.S. 1, 5 n.6 (1978) (citations omitted). The
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United States Supreme Court has stated that “the freedom to travel outside the United States must be distinguished from the right to travel within the United States,” and is “subordinate to national security . . . considerations.” Haig v. Agee, 453 U.S. 280, 306 (1981). Although Mr. Wilwal has alleged facts that a reasonable factfinder could determine shocks the conscience—specifically, drawing guns on a family with four young children despite no evidence that the family was resisting or attempting to flee--the right to international travel is not a fundamental right, and therefore, Mr. Wilwal’s claim fails to satisfy the test set forth in Karsjens. Because the Government’s actions do not implicate a fundamental right, Mr. Wilwal has failed to state a claim for substantive due process violations.
Based on the foregoing, the Court dismisses Count V of the Amended Complaint. E. Administrative Procedure Act (Counts VI and VII) The Government next moves to dismiss Plaintiffs’ claims that the Government’s policies and redress procedures related to the Watchlist violate the APA. Under the APA, the reviewing court must affirm an agency decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 375 (1989); Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The court must consider whether the defendant considered the relevant factors and whether the defendant made a “clear error of judgment.” Motor Vehicles, 463 U.S. at 43. This standard of review is narrow and accords agency decisions a high degree of deference. Sierra Club v. Envtl. Prot. Agency, 252 F.3d 943, 947 (8th Cir. 2001).
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In Count VI, “Plaintiffs allege that the Government’s existing policies permitted the CBP and HSI officers to carry out the unreasonable seizures that Plaintiffs challenge.” (Doc. No. 45 at 48.) The Government seeks dismissal, arguing in part that Plaintiffs have failed to identify specific agency action that they are challenging. Plaintiffs respond that it is “unsurprising” that they “are not aware of the precise contours of those policies . . . given government secrecy.” (Id.) Although Plaintiffs’ allegations that the policies are arbitrary, capricious, or otherwise not in accordance with law are quite general and non-specific, the Court must, on a motion to dismiss, construe all facts in the light most favorable to Plaintiffs. The Court finds that Plaintiffs have sufficiently alleged that the confluence of standards, criteria, and use of the Watchlist among law enforcement and other agencies was “otherwise not in accordance with law” such that it led to the harm Plaintiffs suffered on March 30, 2015.
In Count VII, Mr. Wilwal alleges that the Government’s “refusal to provide [Mr.] Wilwal with a constitutionally adequate process for obtaining redress for his placement on the master watchlist,” “failure to provide Mr. Wilwal with notice of the reasons for his placement on the watchlist, and a meaningful opportunity to contest his continued retention on it,” and “placing and retaining him on the master watchlist” violate the APA. (Am. Compl. ¶¶ 105-07.) The Government argues that Mr. Wilwal’s claim “is coextensive with his fourth claim of relief alleging a violation of his procedural due process rights and fails for the same reasons.” (Gov’t Memo. at 30.) The Court disagrees. For the same reasons set forth in the Court’s procedural due process analysis, the Court finds that Mr. Wilwal has plausibly alleged that the Government’s redress
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procedures do not satisfy due process and are therefore “contrary to constitutional right,” and “otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A), (B).
Based on the foregoing, the Court denies the Government’s motion to dismiss Counts VI and VII of the Amended Complaint.
F. Federal Torts Claim Act (Counts VIII, IX, and X) The Government moves to dismiss Plaintiffs’ tort claims, arguing that Plaintiffs have failed to state actionable tort claims under North Dakota law. Generally, the United States is immune from suit; however, by passing the FTCA, the Federal Government consented to be sued in certain circumstances. Hinsley v. Standing Rock Child Protective Servs., 516 F.3d 668, 671 (8th Cir. 2008). The FTCA provides that “[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. The FTCA applies “to any claim arising . . . out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution” as a result of the “acts or omissions of investigative or law enforcement officers of the United States Government.” Id. § 2680(h). The applicable tort law is “the law of the place where the act or omission occurred.” Id. § 1346(b)(1). Because the detention took place in North Dakota, North Dakota’s tort law applies. Under North Dakota law, to state a claim for false arrest, plaintiffs must plausibly allege that “they were subject to total restraint against their will by means of physical barriers or by threats of force which intimidated them into compliance with orders.” Copper v. City of Fargo, 905 F. Supp. 680, 700 (D.N.D. 1994). The Government
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concedes that Plaintiffs were totally restrained, but asserts that the CBP and HSI agents acted within their “plenary authority” to conduct searches at the border. (Gov’t Memo. at 31-32.) For the same reasons set forth in the Court’s unconstitutional-seizure analysis, the Court concludes that a reasonable factfinder may determine that the agents exceeded their “plenary authority” to conduct border searches and that Plaintiffs’ detention was unreasonable.
A defendant commits battery under North Dakota law when “(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) an offensive contact with the person of the other directly or indirectly results.” Wishnatsky v. Huey, 584 N.W.2d 859, 861 (N.D. Ct. App. 1998). Similarly, under North Dakota law, a defendant commits assault if “he willfully causes bodily restraint or harm to another human being or places another human being in immediate apprehension of bodily restraint or harm.” Binstock v. Fort Yates Pub. Sch. Dist. No. 4, 463 N.W.2d 837, 840 (N.D. 1990). In either case, the act must be unjustifiable to constitute battery or assault. Id.
The Government argues that Plaintiffs have failed to state valid claims for relief because Plaintiffs do not allege any unjustifiable conduct on the part of the CBP and HSI agents. The Court disagrees. A reasonable factfinder, considering the totality of the circumstances, could find that the CBP agents’ conduct was excessive and unreasonable. Specifically, Plaintiffs plausibly allege that all Plaintiffs’ “identification documents were valid,” “the family members were not carrying any illegal items,” “there were no reasons to suspect that any member of the family was carrying illegal items on their persons or in
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the vehicle,” and that Mr. Wilwal was not fleeing or resisting the agents. (Am. Compl. ¶¶ 29, 32.) Nevertheless, the agents drew their guns on the entire family, yelled at the Mr. Wilwal to not “use weapons,” ordered Mr. Wilwal out of the van at gunpoint, and handcuffed Mr. Wilwal. (Id. ¶¶ 31-32.)
Based on the foregoing, the Court denies the Government’s motion to dismiss Counts VIII, IX, and X of the Amended Complaint. V. Necessary Parties
Finally, the Court considers the Government’s argument that TSA is a necessary party to this lawsuit, and that because Plaintiffs failed to join TSA, Rule 12(b)(7) mandates dismissal of Counts Four and Seven. (Gov’t Memo. at 22.) Rule 19(a) designates a person a required party if “in that person’s absence, the court cannot accord complete relief among existing parties.” Fed. R. Civ. P. 19(a)(1)(A). Under Rule 19, courts focus on the relief available between the parties rather than “the speculative possibility of further litigation between a party and an absent person.” Gwartz v. Jefferson Mem’l Hosp. Ass’n, 23 F.3d 1426, 1428 (8th Cir. 1994) (internal quotation marks and citation omitted).
The touchstone of the Rule 19 analysis in this case is whether “meaningful relief” is available to the Plaintiffs.2 Henne v. Wright, 904 F.2d 1208, 1212 n.4 (8th Cir. 1990). Third-parties are not necessarily required parties under Rule 19 merely because they are involved in conduct underlying a plaintiff’s claims. See Equal Emp’t Opportunity
2 Rule 19 also provides two other bases for finding an individual or entity to be a required party. See Fed. R. Civ. P. 19(a)(1)(B)(i)-(ii). The Government does not appear to assert that these provisions apply in this case, and the Court concludes that they do not.
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Comm’n v. Cummins Power Generation, Inc., 313 F.R.D. 93, 99-101 (D. Minn. 2015). If the defendant is independently liable for the plaintiffs’ claims, the court may properly conclude that it can accord complete relief in the absence of such third parties. See id.
As noted in the Court’s analysis of subject-matter jurisdiction, TSC—not TSA— controls the material aspects of Plaintiffs’ suit concerning Mr. Wilwal’s alleged placement on the Watchlist. TSC is responsible for the final review of information received through the watchlist nomination process. Once that information is verified, TSC bears the responsibility of adding an individual to the Watchlist. Finally, TSC is tasked with reviewing individuals’ concerns regarding watchlist status, including making determinations about whether to keep a person on the watchlist. Based on the foregoing, the Court can afford complete relief to Plaintiffs because TSC is named as a defendant.
However, the Court observes that even if some of the relief it would order implicates TSA, then the presence of DHS as a defendant is sufficient to satisfy Rule 19 requirements. TSA is a component of DHS, and consequently, DHS can implement any relief for which TSA is responsible.
Accordingly, the Court denies the Government’s motion to dismiss on the basis that Plaintiffs’ did not name TSA as a defendant.
ORDER Based on the files, record, and proceedings herein, IT IS HEREBY ORDERED that the Government’s Motion to Dismiss (Doc. No. [37]) is GRANTED IN PART AND DENIED IN PART as follows:
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1. The Government’s Motion is GRANTED with respect to Plaintiffs’ Fifth Claim for Relief alleging a violation of Plaintiffs’ substantive due process rights. Plaintiffs’ Fifth Claim for Relief is DISMISSED WITH PREJUDICE.
2. The Government’s Motion is DENIED in all other respects.

Dated: September 27, 2018

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
Civ. No. 17-CV-02835 (DWF/DTS)

Abdisalam Wilwal, et al., Plaintiffs,
v. Kirstjen Nielsen, et al.,
Defendants.

Case No. 0:17-cv-02835

ANSWER Defendants Kirstjen Nielsen, Secretary of the Department of Homeland Security (“DHS”); Kevin K. McAleenan, Commissioner of U.S. Customs and Border Protection (“CBP”);Ronald D. Vitiello, Deputy Director and Senior Official Performing the Duties of the Director of U.S. Immigration and Customs Enforcement (“ICE”); Derek N. Brenner, Executive Associate Director of Homeland Security Investigations, U.S. Immigration and Customs Enforcement, (“HSI”); Jefferson B. Sessions, Attorney General of the United States; Christopher A. Wray, Director of the Federal Bureau of Investigation (“FBI”); Charles H. Kable, IV, Director of the Terrorist Screening Center (“TSC”); and the United States of America, (collectively, “Defendants”), hereby respond to each numbered paragraph of the Amended Complaint (ECF No.25) as follows: 1. This paragraph contains Plaintiffs’ characterization of this lawsuit as well as arguments, statements of law, or legal conclusions, to which no response is required.

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2. With respect to the first sentence of this paragraph, admitted. With respect to the second sentence of this paragraph, Defendants admit that Plaintiffs are U.S. citizens and they presented themselves for inspection at the Portal, North Dakota Port of Entry on March 30, 2015. With respect to the third sentence of this paragraph, Defendants admit that CBP officers detained Plaintiffs. Defendants further admit that CBP officers withdrew their weapons from their holsters when they initially approached Wilwal’s vehicle, and that CBP officers placed Wilwal in handcuffs. Defendants aver that CBP detained Mr. Wilwal for approximately nine hours. Defendants lack knowledge or information sufficient to form a belief about the truth of the remaining allegations in this paragraph.
3. Defendants neither confirm nor deny the allegations in this paragraph because they purport to reflect watchlist status of a particular individual—information which is protected by statute and privilege.
4. Deny the first sentence of this paragraph, except to admit that, other than a short time when Mr. Wilwal’s handcuffs were repositioned, Mr. Wilwal was handcuffed for the duration of his detention. Defendants admit the allegation in the second sentence of this paragraph that medical attention was provided to Mr. Wilwal. Defendants deny the allegation in the second sentence that CBP officers did not offer Mr. Wilwal food. Defendants lack sufficient knowledge or information to respond to the truth of the allegations in the second sentence that Mr. Wilwal “passed out,” or that Mr. Wilwal was “anxious.” Finally, the allegation in the second sentence that this episode purportedly occurred some unspecified “hours into his detention,” is vague, and accordingly no response is required. To the extent a response is required, denied. Defendants aver that CBP provided medical assistance to Mr. Wilwal at approximately 8:25am. With respect to the third sentence, the allegation that the HSI interview
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was “several hours later” is also vague, and accordingly no response is required. To the extent a response is required, Defendants admit that HSI special agents first interviewed Mr. Wilwal at approximately 1:30pm. Further with respect to the third sentence of this paragraph, Defendants admit the remaining allegations in that sentence. With respect to the fourth sentence of this paragraph, Defendants admit that HSI officers interviewed Mr. Wilwal, and that CBP released Mr. Wilwal after his interview. The remaining allegations in this paragraph are denied.
5. Deny the first sentence of this paragraph, except to aver that Mr. Wilwal was detained for additional scrutiny and questioning, and other plaintiffs remained in CBP custody during certain of the time that Mr. Wilwal was detained, approximately nine hours. With respect to the second and third sentences of this paragraph, Defendants admit only that Ms. Abdigani called 911 using her son’s mobile phone, that CBP officers detained the phone, and informed the 911-operator that no assistance was needed. Defendants lack sufficient knowledge or information to respond to the truth of the allegations in the second sentence as to what Ms. Abdigani stated to the 911 dispatcher. Deny the fourth sentence of this paragraph, except to admit that CBP officers performed a pat-down search of Ms. Wilwal-Abdigani’s then 14-yearold son in a separate room. Deny the fifth and sixth sentences of this paragraph. The remaining allegations in this paragraph are denied.
6. Defendants lack knowledge or information sufficient to form a belief about the truth of the allegations in this paragraph.
7. This paragraph contains Plaintiffs’ characterization of this lawsuit as well as arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied.
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8. Defendants lack knowledge or information sufficient to form a belief about the truth of the remaining allegations in this paragraph, except to admit that Plaintiff Abdisalam Wilwal is a U.S. citizen.
9. Defendants lack knowledge or information sufficient to form a belief about the truth of the allegations in this paragraph, except to admit that Plaintiff Sagal Abdigani is a U.S. citizen.
10. Defendants lack knowledge or information sufficient to form a belief about the truth of the allegations in this paragraph, except to admit that Plaintiff M.O. is a U.S. citizen and was 14 years old at the time of the events described in the Amended Complaint.
11. Defendants lack knowledge or information sufficient to form a belief about the truth of the allegations in this paragraph, except to admit that Plaintiff N.W. is a U.S. citizen and was eight years old at the time of the events described in the Amended Complaint.
12. Defendants lack knowledge or information sufficient to form a belief about the truth of the allegations in this paragraph, except to admit that Plaintiff A.W. is a U.S. citizen. And was six years old at the time of the events described in the Amended Complaint.
13. Defendants lack knowledge or information sufficient to form a belief about the truth of the allegations in this paragraph, except to admit that Plaintiff A.M. is a U.S. citizen. And was five years old at the time of the events described in the Amended Complaint.
14. Deny the allegations of this paragraph, and aver that the Secretary of Homeland Security is Kirstjen Nielsen who, as Secretary, has authority over DHS, which includes the DHS components at issue in this lawsuit.
15. Admit, except as to Mr. McAleenan’s title, which is “Commissioner of U.S. Customs and Border Protection.”
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16. Deny that Thomas Homan is the Acting Director of U.S. Immigration and Customs Enforcement. Defendants aver that Ronald D. Vitiello is the Deputy Director and Senior Official Performing the Duties of the Director of U.S. Immigration and Customs Enforcement. Defendants admit that Mr. Vitiello, in his official capacity, has responsibility for and oversight over ICE policies, procedures, and practices related to the detention and questioning of American citizens entering the United States at border crossings and ports of entry, including the conduct of Homeland Security Investigations Special Agents. Defendants admit that Plaintiff is suing the Deputy Director and Senior Official Performing the Duties of the Director of U.S. Immigration and Customs Enforcement in his official capacity. The remaining allegations in this paragraph are denied.
17. Admitted, except that Mr. Benner’s current title is Executive Associate Director of Homeland Security Investigations.
18. Admitted. 19. Admitted. 20. Admitted. 21. This paragraph constitutes a legal conclusion, to which no response is required. 22. This paragraph sets forth Plaintiffs’ assertions of jurisdiction, and thus consists of argument, statements of law, or legal conclusions, to which no response is required. 23. This paragraph sets forth Plaintiffs’ assertions of jurisdiction, and this Court’s equitable power, and thus consists of argument, statements of law, or legal conclusions, to which no response is required. 24. This paragraph sets forth Plaintiffs’ assertions of jurisdiction, and thus consists of argument, statements of law, or legal conclusions, to which no response is required.
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25. This paragraph sets forth Plaintiffs’ assertions of venue, and thus consists of argument, statements of law, or legal conclusions, to which no response is required.
26. Defendants lack knowledge or information sufficient to form a belief about the truth of the allegations in this paragraph.
27. Defendants lack knowledge or information sufficient to form a belief about the truth of the allegations in this paragraph.
28. Deny the first sentence of this paragraph regarding the time of Plaintiffs’ arrival at the border crossing, and aver that, on March 30, 2015, Plaintiffs presented themselves for inspection at the Portal, North Dakota Port of Entry at approximately 7:14am. Defendants otherwise lack sufficient knowledge or information to form a belief about the truth of the rest of the allegations in the first sentence. Admit the second sentence of this paragraph.
29. Defendants lack sufficient information on which to respond to the first sentence of this paragraph, other than to admit that CBP did not identify any issues with Plaintiffs’ documents or any contraband. The second sentence of this paragraph contains arguments, statements of law, or legal conclusions, to which no response is required but to the extent a response is deemed required, denied.
30. Defendants lack sufficient information on which to respond to the allegations in this paragraph, except to admit that CBP uses TECS, inter alia, as its primary law enforcement system, and that CBP officers entered Mr. Wilwal’s information into TECS. Defendants respectfully refer the Court to the TECS System of Records Notice under the Privacy Act of 1974 for a full and accurate description of TECS: https://www.gpo.gov/fdsys/pkg/FR-2008-1219/html/E8-29807.htm.
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31. Deny the first sentence of this paragraph, except to admit that, following Plaintiffs’ arrival at the station, two CBP officers exited the Port of Entry and withdrew their weapons from their holsters when they approached the van. Defendants currently lack sufficient knowledge or information to form a belief about the allegations of the second sentence of this paragraph. Defendants lack sufficient knowledge or information to form a belief about the allegations in the third sentence, except to admit that Mr. Wilwal displayed his hands when the CBP officers approached his vehicle. Defendants currently lack sufficient knowledge or information to form a belief about the allegations in the fourth and fifth sentences of this paragraph, except to admit that a CBP officer in the primary inspection area notified other officers that children were in the vehicle.
32. Deny the first sentence of this paragraph, except to admit that CBP officers ordered Mr. Wilwal out of his vehicle. Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations in the second sentence. Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations in the third sentence, except to admit that Mr. Wilwal exited the van. Admit the fourth sentence and fifth sentences. The remaining allegations in this paragraph are denied
33. Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations of this paragraph.
34. Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations of this paragraph.
35. Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations in this paragraph, except to admit that CBP officers placed Mr. Wilwal in a room inside the Portal, North Dakota Port of Entry while he was handcuffed.
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36. Deny the first sentence. Admit the second sentence. 37. Admit only that CBP officers handcuffed and detained Mr. Wilwal. Defendants neither confirm nor deny the remaining allegations in this paragraph, as they purport to reflect watchlist status of a particular individual – information which is protected by statute and privilege. 38. Admit the first sentence. Deny the second sentence, except to admit that the Terrorist Identities Datamart Environment (“TIDE”) is the U.S. Government’s classified central and shared repository for all information pertaining to internationally known or suspected terrorists, and that the Terrorist Screening Database (“TSDB”) is the Government’s consolidated terrorist watchlist. Deny the third sentence, except to admit that TSC develops and maintains the TSDB, which contains both biographic and biometric identifying information. Deny the fourth sentence, except to admit the TSDB does not contain the underlying classified intelligence or other derogatory information that is the basis for an individual’s inclusion in the database. 39. Defendants deny the first sentence, except to admit that subsets of the TSDB are made available to other federal agencies, including CBP and the Transportation Security Administration (“TSA”), for use in screening, vetting, and/or inspection, as appropriate. Defendants admit in the second sentence that TSC shares certain terrorist screening information with select foreign partners. Defendants otherwise can neither confirm nor deny the identities of specific foreign partners—information which is protected by statute and/or privilege. Deny the third and fourth sentences of this paragraph, except to admit that TECS includes information exported from the TSDB. Deny the fifth sentence, except to admit that TSC determines whether a nomination or record meets the substantive criteria for inclusion or continued inclusion in the TSDB.
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40. Deny this paragraph, except to admit that a subset of the TSDB is exported to CBP, through DHS, that TECS includes information exported from the TSDB, and that individuals whose identities are included in the TSDB may be referred for additional scrutiny, commonly referred to as secondary inspection, at ports of entry. The remaining allegations in this paragraph are denied.
41. Deny the allegations in this paragraph, except to admit that inclusion in the TSDB as a known or suspected terrorist generally requires a determination that there is a reasonable suspicion that the individual is engaged, has been engaged, or intends to engage in conduct constituting, in preparation for, in aid or in furtherance of, or related to, terrorism and/or terrorist activities.
42. The allegations in this paragraph are vague and contain legal conclusions to which no response is required. To the extent a response is required, Defendants deny these allegations, and aver that determinations regarding the reasonable suspicion standard must be based on articulable intelligence or information, taken together with any rational inferences that can be drawn from that intelligence or information, and that such determinations must consider the totality of the circumstances.
43. The allegations in the first sentence of this paragraph contain legal conclusions to which no response is required, but to the extent a response is deemed necessary, denied. The remaining allegations in this paragraph purport to summarize certain public reports, to which the Court is respectfully referred for full and accurate statements of their contents. Otherwise, denied.
44. Defendants cannot confirm or deny the allegation in this paragraph because a response requires information protected by privileges.
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45. The allegations in this paragraph contain legal conclusions to which no response is required, but to the extent a response is required, denied.
46. With respect to the first sentence, Defendants admit that DHS TRIP is a single point of contact for individuals who have inquiries or seek resolution regarding difficulties they experienced during their travel screening at transportation hubs - like airports - or crossing U.S. borders, including watchlist issues. Defendants aver that DHS TRIP reviews the information submitted by the traveler and evaluates each inquiry to determine which DHS components or other governmental agencies have equities in the issues underlying the claimed travel difficulties. With respect to the second sentence, Defendants admit that the TSC supports DHS TRIP by helping to resolve inquiries which may appear to be related to data in the TSDB. Defendants aver that DHS TRIP transmits redress inquiries to TSC’s Redress Unit in the small fraction of cases in which DHS TRIP determines that a traveler is an exact or possible match to an identity in the TSDB. With respect to the third sentence, Defendants admit that the TSC Redress Unit reviews the available derogatory and exculpatory information about the traveler, including any information provided by the traveler as a part of the inquiry, to make a new determination as to the individual’s status in the TSDB. Defendants aver that the TSC Redress Unit consults with other agencies, as appropriate. Defendants deny the remaining allegations in this paragraph.
47. Deny the first sentence of this paragraph, except to admit that upon the conclusion of its review concerning an individual’s watchlist status, the TSC Redress Unit notifies DHS TRIP of the outcome of the review. Admit the second and third sentences, with the exception of certain circumstances in which such information may be provided concerning the No Fly list, which are not relevant here. Deny the fourth sentence, except to admit that the determination letter provides as much information to the inquiring traveler as possible, without disclosing
10

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whether the traveler is included in the TSDB or revealing other sensitive information in light of national security and law enforcement interests. Deny the fifth sentence, except to admit that the redress process does not provide individuals with an in-person hearing. Defendants further aver that the redress process provides individuals who experience travel difficulties, including those potentially connected to watchlisting, with an opportunity to apply for redress, submit information and obtain a de novo review of their records, which may be corrected, receive a response and, depending on the circumstances, avail themselves of additional process, where applicable.
48. With regard to the first sentence of this paragraph, admitted. With regard to the specific, numbered allegations within this paragraph, Defendants respond as follows. Concerning (1) Defendants lack sufficient knowledge or information to respond to the truth of the allegations therein. With regard to (2), Defendants admit only that CBP detained Mr. Wilwal, and as to the remainder of the allegations therein Defendants neither confirm nor deny, as the allegations purport to identify information which would tend to confirm or deny watchlist status or reflect watchlist status of a particular individual – information which is protected by statute and privilege. With regard to (3) Defendants lack sufficient knowledge or information to respond to the truth of the allegations therein. With regard to (4) Defendants lack sufficient knowledge or information to respond to the truth of the allegations therein. With regard to (5), this sets forth Plaintiffs’ characterization of certain documents in Exhibit A of the Amended Complaint. The Court is respectfully referred to those documents for a full and accurate statement of their contents. To the extent that the allegations in this paragraph mischaracterize Exhibit A, Defendants deny the allegations. The remaining allegations in this paragraph purport to identify information that would tend to confirm or deny watchlist status or reflect watchlist
11

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status of a particular individual – information which is protected by statute and privilege – and Defendants neither confirm nor deny such allegations.
49. Certain of the allegations in this paragraph, including whether Mr. Wilwal has not been offered a “meaningful opportunity to contest his placement on the watchlist,” constitute legal conclusions to which no response is required. Defendants neither confirm nor deny the remaining allegations in this paragraph as they purport to reflect watchlist status of a particular individual – information which is protected by statute and privilege.
50. Defendants neither confirm nor deny the allegations in this paragraph as they purport to reflect watchlist status of a particular individual or information regarding the manner in which watchlist information is communicated to law enforcement officers – information which is protected by statute and privilege.
51. The allegations in this paragraph contain legal conclusions to which no response is required. To the extent a response is deemed necessary, Defendants neither confirm nor deny the allegations in this paragraph as they purport to reflect watchlist status of a particular individual – information which is protected by statute and privilege.
52. Deny the first sentence of this paragraph and aver that, at approximately 8:25am, CBP officers provided Mr. Wilwal with medical attention. Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations of the second sentence of this paragraph. Admit the third sentence of this paragraph, except that Defendants lack sufficient knowledge or information to form a belief about the allegation that Mr. Wilwal tried to stand up and passed out on the floor. The remaining allegations in this paragraph are denied.
53. With respect to the first two sentences of this paragraph, Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations that Mr.
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Wilwal lost and then “regained consciousness.” Defendants aver that at approximately 8:25am CBP officers with emergency medical technician training responded to Mr. Wilwal’s complaints about chest pain, and that the handcuffs placed on Mr. Wilwal were moved to the front of his body. Defendants further aver that CBP officers contacted emergency services and an ambulance was dispatched to the Port of Entry. The ambulance arrived at the Port of Entry at approximately 8:36am. Defendants admit in the second sentence of this paragraph that Mr. Wilwal refused to go to the hospital. Defendants otherwise lack sufficient knowledge or information to form a belief about the truth of the allegation that Mr. Wilwal declined a trip to the hospital because “he did not want to leave his family at the border facility.” Admit the third and fourth sentences and aver that Mr. Wilwal was offered food at approximately 10:10 a.m., which he declined. The remaining allegations in this paragraph are denied.
54. Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations in this paragraph.
55. Admit that paramedics departed, but deny that immediately subsequent to the paramedics’ departure Mr. Wilwal was again left alone in the room.
56. Deny the first sentence. Defendants aver that at 12:45pm HSI agents arrived at the Port of Entry and at approximately 1:18pm CBP officers escorted the HSI Special Agents and Mr. Wilwal to an interview room for an interview. Deny the second sentence, except to admit that CBP officers had notified HSI that Mr. Wilwal had been detained. Admit the third sentence and aver that the HSI Special Agents traveled from Minot, North Dakota to the Portal, North Dakota Port of Entry for the interview. Defendants deny the remaining allegations in this paragraph.
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57. Admit the first sentence, except to deny that the HSI interview began “[s]hortly before 4:00 p.m.” Defendants aver that the interview was conducted in two sessions; the first beginning at approximately 1:30pm and ending at approximately 2:30pm. And the second session beginning at approximately 4:10pm and ending at approximately 4:15pm. Admit the second sentence. Defendants lack sufficient knowledge or information to respond to the truth of the allegations in the third sentence. Defendants deny the remaining allegations in this paragraph
58. Admit. 59. Deny. 60. Admit first sentence, except to deny that HSI asked Mr. Wilwal who owned the family van. Defendants lack sufficient knowledge or information to admit or deny the second sentence. 61. Deny. 62. Defendants lack sufficient information or knowledge to admit or deny the allegations in the first sentence of this paragraph regarding statements made to CBP officials. Defendants otherwise deny the remaining allegations in this paragraph and aver that, at approximately 4:25 p.m., CBP admitted Mr. Wilwal and his family into the United States. 63. The first sentence of this paragraph contains Plaintiffs’ characterization of this lawsuit as well as arguments, statements of law, or legal conclusions, to which no response is required, but to the extent a response is deemed required, deny. With regard to the second sentence, this sentence purports to quote Plaintiffs’ Exhibit A, to which the Court is respectfully referred for a full and accurate statement of its contents. 64. The first sentence of this paragraph contains Plaintiffs’ characterization of this lawsuit as well as arguments, statements of law, or legal conclusions, to which no response is
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required, but to the extent a response is deemed required, deny. Deny the second sentence, except to admit that CBP officers ensured Mr. Wilwal was provided with medical attention.
65. Deny, except to admit that Ms. Abdigani and the Wilwal children were initially detained.
66. Deny the first sentence, except to admit that after Mr. Wilwal was detained and handcuffed, CBP officers asked Ms. Abdigani if she had a driver’s license, and that CBP officers directed Ms. Abdigani to park the family’s vehicle near the border station at approximately 7:20am. Defendants lack sufficient knowledge or information to form a belief about the truth of the remaining allegations of this paragraph, except Defendants admit that two officers talking to Ms. Abdigani had drawn handguns and pointed them at the ground.
67. Admit. 68. Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations regarding Ms. Abdigani’s children. Defendants otherwise deny the allegations in this paragraph, except to admit that CBP officers placed Ms. Abdigani and the Wilwal children in a waiting room. 69. Defendants lack sufficient knowledge or information to respond to the truth of the allegations of this paragraph. 70. Deny the first sentence. Admit the second sentence. 71. Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations of this paragraph, except to admit that Ms. Abdigani was not permitted to use her mobile phone.
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72. Defendants lack knowledge or information to form a belief about the truth of the allegations in this paragraph, except to admit that Ms. Abdigani was not permitted to use her phone and that CBP officers would not make any calls on her behalf.
73. With respect to the first sentence of this paragraph, deny that food was not offered for “several hours.” Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations as to whether Plaintiffs were hungry. Defendants admit that Ms. Abdigani requested food for herself and the children. Admit the second sentence. Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations in the third and fourth sentences. Deny the fifth sentence and aver that CBP officers provided Ms. Abdigani and the children with hamburgers at 10:34am. The remaining allegations in this paragraph are denied.
74. Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations in the first sentence. Admit the second sentence.
75. Admit the first sentence. Defendants lack sufficient knowledge or information to form a belief about the allegations in the second through fourth sentences of this paragraph. Deny the fifth and sixth sentences of this paragraph, except to admit that a CBP officer took the phone Ms. Abdigani was using and informed a dispatcher that there was no assistance needed at the Port of Entry.
76. Admit. 77. Admit the first sentence of this paragraph. Deny the second sentence. 78. Admit.
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79. Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations of this paragraph, except to deny that CBP officers told M.O. to remove his clothes.
80. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required, but to the extent a response is deemed required, deny.
81. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required, but to the extent a response is deemed required, deny.
82. Deny the first sentence of this paragraph, except to aver that Mr. Wilwal was detained for additional scrutiny and questioning, and other plaintiffs remained in CBP custody during certain of the time that Mr. Wilwal was detained. The second sentence of this paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required, but to the extent a response is deemed required, deny.
83. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent that a response is required, deny, except that Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations of this paragraph regarding how the plaintiffs felt, what they said to one another, and what they were thinking.
84. Deny the first sentence of this paragraph, denied and aver that Ms. Abdigani and the children were admitted into the United States at approximately 4:25 p.m. Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations of the second sentence.
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85. Defendants admit that on March 31, 2015, Mr. Wilwal and Ms. Abdigani appeared at the FBI field office in Minneapolis. Deny the remaining allegations in this paragraph.
86. Admit the first and second sentences. With respect to the third and fourth sentences Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations therein. Deny the fifth sentence.
87. Admit the first sentence. Deny the second sentence. 88. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required, but to the extent a response is deemed required, denied. 89. Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations of this paragraph. 90. With respect to the first sentence of this paragraph, Defendants aver that CBP and HSI created and maintained records regarding Plaintiffs’ border crossing on March 30, 2015, and otherwise Defendants lack sufficient knowledge or information to form a belief about the truth of the remaining allegations of this sentence. The remainder of this paragraph consists of Plaintiffs’ characterization of certain documents in Exhibit A of the Amended Complaint. The Court is respectfully referred to those documents for a full and accurate statement of their contents. To the extent that the allegations in this paragraph mischaracterize Exhibit A, Defendants deny the allegations. 91. Defendants lack sufficient knowledge or information to form a belief about the truth of the allegations of this paragraph.
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92. Defendants admit that Plaintiffs submitted administrative tort claims to CBP and that CBP acknowledged receipt of the claims on March 9, 2017. Defendants admit that Plaintiffs submitted amended administrative claims on July 11, 2017. The remaining allegations contain Plaintiffs’ characterization of the lawsuit and legal conclusions to which no response is required. To the extent a response is required, denied.
93. Admit. 94. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied. 95. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied. 96. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied. 97. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied. 98. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied. 99. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied. 100. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied. 101. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied. Defendants further aver that the Court has dismissed this claim.
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102. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied. Defendants further aver that the Court has dismissed this claim.
103. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied.
104. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied.
105. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied.
106. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied.
107. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied.
108. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied.
109. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied.
110. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied.
111. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied.
112. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied.
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113. This paragraph contains Plaintiffs’ arguments, statements of law, or legal conclusions, to which no response is required. To the extent a response is required, denied.
The next paragraphs numbered (a) through (e) constitute a prayer for relief to which no response is required, but insofar as an answer is deemed necessary, Defendants deny that Plaintiffs are entitled to the relief requested or to any relief whatsoever.
Defendants hereby deny all allegations in Plaintiffs’ Amended Complaint not expressly admitted or denied.
DEFENSES 1. This Court lacks subject matter jurisdiction. 2. Plaintiffs have failed to state a claim upon which relief can be granted. 3. Defendant United States, through its employees and agents, acted with due care and diligence, in conformance with the applicable statutes and regulations, at all relevant times. 4. No acts or omissions by the United States were the cause of any injuries to the Plaintiffs. 5. Defendant United States did not violate a mandatory statute or regulation in the manner in which CBP officers detained Plaintiffs. 6. Decisions regarding the manner in which to detain Plaintiffs were susceptible to policy analysis. 7. To the extent that the law (common or statutory) of the State of North Dakota, where the alleged acts or omissions occurred, limits damages, reduces damages, or limits a defendant’s liability or a plaintiff’s cause of action, that law applies to this action against the United States to the extent that it is not inconsistent with the Federal Tort Claims Act (FTCA). 28 U.S.C. § 2674.
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8. To the extent the Complaint requests punitive damages and injunctive relief, such relief is not recoverable under the FTCA. 28 U.S.C. § 2674.
9. Plaintiffs have failed to exhaust their administrative remedies before filing an amended complaint that asserts FTCA claims. 28 U.S.C. § 2675(a).
10. Plaintiffs’ damages under the FTCA, if any, are limited to the amount stated in the administrative claims. 28 U.S.C. § 2675(b).
11. The Complaint is barred by the statute of limitations, in whole or in part. 28 U.S.C. § 2401(b).
12. The Complaint is barred by the discretionary function exception of the FTCA. 28 U.S.C. § 2680(a).
THEREFORE, having fully answered, Defendants assert that Plaintiffs are not entitled to the relief requested, or to any relief whatsoever, and request that this action be dismissed with prejudice and that Defendants be given such other relief as the Court deems just and proper.
Respectfully submitted this 25th day of October, 2018.
GREGORY G. BROOKER Acting United States Attorney ERIN M. SECORD Assistant United States Attorney Attorney ID Number 0391789 600 U.S. Courthouse 300 South Fourth Street Minneapolis, MN 55415 (612) 664-5600 Erin.Secord@usdoj.gov
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JOSEPH A. HUNT Acting Assistant Attorney General Civil Division JOHN R. TYLER Assistant Branch Director /s/ Michael Drezner MICHAEL L. DREZNER U.S. Department of Justice Civil Division, Federal Programs Branch Tel: (202) 514-4505 michael.l.drezner@usdoj.gov Counsel for Defendants JAMES G. TOUHEY, JR. Director, Torts Branch RUPERT MITSCH Assistant Director, Torts Branch /s/ Paul David Stern PAUL DAVID STERN JOCELYN KRIEGER U.S. Department of Justice Civil Division, Torts Branch NY Bar No.: 4613592 Tel: (202) 616-2197 paul.david.stern@usdoj.gov Counsel for United States of America
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 CASE 0:17-cv-02835-DWF-DTS Document 118 Filed 04/10/20 Page 1 of 6

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

ABDISALAM WILWAL, SAGAL ABDIGANI, individually and on behalf of their children N.W., A.M.W., A.M.M., and MOHAMED OSMAN,
Plaintiffs,
v.
CHAD A. WOLF, Acting Secretary of the Department of Homeland Security, in his official capacity, et al.,
Defendants.

Civil No. 17-2835 (DWF/DTS)
REDACTED FINDINGS OF FACT AND
ORDER APPROVING MINOR SETTLEMENT

Upon review of the Petition for Minor Settlement filed by Abdisalam Wilwal and

Sagal Abdigani (“Petitioners”), individually, and as parents and natural guardians for

minors N.W., A.M.W., and A.M.M., the Court issues the following Findings of Fact and

Order.

FINDINGS OF FACT

1. N.W. is the minor child of Abdisalam Wilwal and Sagal Abdigani.

date of birth is

, 2007 and is presently years old. resides with

parents in

,

, Minnesota.

2. A.M.W. is the minor child of Abdisalam Wilwal and Sagal Abdigani.

date of birth is

, 2008 and is presently years old. resides with

parents in

,

, Minnesota.

CASE 0:17-cv-02835-DWF-DTS Document 118 Filed 04/10/20 Page 2 of 6

CASE 0:17-cv-02835-DWF-DTS Document 118 Filed 04/10/20 Page 3 of 6

Administrative Procedure Act Claims; and (b) a Stipulation for Compromise Settlement

and Release of Federal Tort Claims Act Claims Pursuant to 28 U.S.C. § 2677.

9. In entering these agreements, Defendants specifically deny any fault or

liability to Plaintiffs.

10. Plaintiffs’ attorneys provided legal services in this matter pro bono. To

allow Plaintiffs to recover the largest settlement available, all settlement funds, inclusive

of attorneys’ fees and costs, have been allocated to Plaintiffs as part of a global settlement

agreement. Accordingly, no fees or costs shall be paid to Plaintiffs’ counsel for their

representation in this matter.

11. Petitioners have represented to the Court that they believe that the proposed

settlement is in the best interest of the minor children and should be accepted subject to

the approval of this Court, rather than impose upon the minors and their parents the

emotional distress, burden, additional expenses, delay, and uncertainty of moving ahead

with a trial.

12. The Court has determined that the proposed settlement and distribution of

funds is fair and reasonable.

IT IS HEREBY ORDERED that:

1. Petitioners may accept Defendants’ settlement offer of $

, in

addition to the non-monetary terms to which the parties have agreed as set forth in the

Settlement Agreement and Release of Constitutional and Administrative Procedure Act

Claims.

2. Distribution of the settlement funds is approved as follows:

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a. To N.W., the sum of $

. Since N.W. is a minor, said amount is

to be invested in a Certificate of Deposit to be purchased through Wells Fargo

Bank. The Certificate of Deposit and the safekeeping receipt and/or any other

document evidencing its purchase shall show on their face the following legend:

NO TRANSACTIONS SHALL BE MADE WITHOUT COURT ORDER.

The Certificate of Deposit shall be maintained in the following format:

N.W., a minor, by parents and natural guardians, Abdisalam Wilwal and Sagal Abdigani. Redemption by court order only until the minor reaches the age of majority. United States District Court for the District of Minnesota, Civil No. 17-2835 (DWF/DTS).
A copy of the Court’s order is to be delivered to Wells Fargo Bank by Robins

Kaplan LLP, along with the check and the request for the Certificate of Deposit.

Evidence of purchase of the Certificate of Deposit is to be filed with the Court.

Interest earned on the Certificate of Deposit will not be available to N.W. or

parents until released by the Court to N.W. All interest statements, notifications

and tax information shall go to N.W.’s place of residence at

,

,

, or as directed to be changed from

time to time by N.W. or parents. Applications for release of funds, either

before or upon the age of majority, may be made by petition to the Court.

b. To A.M.W., the sum of $

. Since A.M.W. is a minor, said

amount is to be invested in a Certificate of Deposit to be purchased through Wells

Fargo Bank. The Certificate of Deposit and the safekeeping receipt and/or any

other document evidencing its purchase shall show on their face the following

4

CASE 0:17-cv-02835-DWF-DTS Document 118 Filed 04/10/20 Page 5 of 6

legend: NO TRANSACTIONS SHALL BE MADE WITHOUT COURT

ORDER. The Certificate of Deposit shall be maintained in the following format:

A.M.W., a minor, by parents and natural guardians, Abdisalam Wilwal and Sagal Abdigani. Redemption by court order only until the minor reaches the age of majority. United States District Court for the District of Minnesota, Civil No. 17-2835 (DWF/DTS).
A copy of the Court’s order is to be delivered to Wells Fargo Bank by Robins

Kaplan LLP, along with the check and the request for the Certificate of Deposit.

Evidence of purchase of the Certificate of Deposit is to be filed with the Court.

Interest earned on the Certificate of Deposit will not be available to A.M.W. or

parents until released by the Court to A.M.W. All interest statements,

notifications and tax information shall go to A.M.W.’s place of residence at

,

,

, or as directed to be

changed from time to time by A.M.W. or parents. Applications for release of

funds, either before or upon the age of majority, may be made by petition to the

Court.

c. To A.M.M., the sum of $

. Since A.M.M. is a minor, said

amount is to be invested in a Certificate of Deposit to be purchased through Wells

Fargo Bank. The Certificate of Deposit and the safekeeping receipt and/or any

other document evidencing its purchase shall show on their face the following

legend: NO TRANSACTIONS SHALL BE MADE WITHOUT COURT

ORDER. The Certificate of Deposit shall be maintained in the following format:

5

CASE 0:17-cv-02835-DWF-DTS Document 118 Filed 04/10/20 Page 6 of 6

A.M.M., a minor, by parents and natural guardians, Abdisalam Wilwal and Sagal Abdigani. Redemption by court order only until the minor reaches the age of majority. United States District Court for the District of Minnesota, Civil No. 172835 (DWF/DTS).
A copy of the Court’s order is to be delivered to Wells Fargo Bank by Robins

Kaplan LLP, along with the check and the request for the Certificate of Deposit.

Evidence of purchase of the Certificate of Deposit is to be filed with the Court.

Interest earned on the Certificate of Deposit will not be available to A.M.M. or

parents until released by the Court to A.M.M. All interest statements, notifications

and tax information shall go to A.M.M.’s place of residence at

,

,

, or as directed to be changed from

time to time by A.M.M. or parents. Applications for release of funds, either

before or upon the age of majority, may be made by petition to the Court.

d. To Abdisalam Wilwal, Sagal Abdigani, and Mohamed Osman, the

sum of $

each (totaling $

).

3. Petitioners are authorized to sign any documents necessary to effectuate the

settlement and distribution of the recovered proceeds.

Dated: April 10, 2020

s/Donovan W. Frank
DONOVAN W. FRANK United States District Judge

6