2:12-cv-11656-AC-LJM Doc # 1 Filed 04/13/12 Pg 1 of 14 Pg ID 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ABDULRAHMAN CHERRI,

)

WISSAM CHARAFEDDINE,

)

ALI SULEIMAN ALI, and, )

KHEIREDDINE BOUZID,

)

Case No.

)

Hon.

Plaintiffs,

)

Magistrate:

)

v.

)

)

ROBERT S. MUELLER, III, in his official

)

capacity as Director of the Federal Bureau

)

of Investigation;

)

)

MICHAEL J. FISHER, in his official capacity )

as Chief of the United States Border Patrol;

)

)

JOHN S. PISTOLE, in his official capacity as )

Administrator of the Transportation Security

)

Administration;

)

)

ROBERT B. THOMPSON, in his individual )

capacity;

)

)

JEFF SOKOLOWSKI , in his individual

)

capacity;

)

)

UNIDENTIFIED FBI AGENTS, in their

)

individual capacities; )

)

UNIDENTIFIED CBP AGENTS, in their

)

individual capacities; and, )

)

UNIDENTIFIED TSA AGENTS, in their

)

individual capacities;

)

)

Defendants.

)

_____________________________________________________________________________/

COMPLAINT AND JURY DEMAND

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Plaintiffs, AB DULRAHMAN CHE RRI, W ISSAM CHAR AFEDDINE, ALI SULEIMAN ALI, and KHEIREDDINE BOUZID, through undersigned counsel, state as follows:
Parties 1. Plaintiff Abdulrahman Cherri is a United State s Citizen and a Muslim residing in Wayne County, Michigan, within this district. 2. Plaintiff Wissam Charafeddine is a United States Citizen and a Muslim residing in Wayne County, Michigan, within this district. 3. Plaintiff Ali Suleim an Ali is a U nited States Citizen an d a Muslim resid ing Wayne County, Michigan, within this district. 4. Plaintiff Kheireddine Bouzid is a U nited States Citizen and a Muslim of residing in Washtenaw County, Michigan, within this district. 5. Defendant Robert S. Muelle r is Directo r of the Feder al Bureau of Investigation (“FBI”). Defendant Mueller is being sued in his official capacity, only. 6. Defendant Robert B. Thom pson is an agent employed by the FBI and is being sued in his individual capacity. 7. Defendant Jeff Sokolowski is an agent em ployed by the FBI and is being sued in his individual capacity. 8. Defendant Michael J. Fisher is Chief of the United States Border Patro l (“CBP”). Defendant Fisher is being sued in his official capacity, only. 9. Defendant John S. Pi stole is Adm inistrator of the Transportation Security Administration (“TSA”). Defendant Pistole is being sued in his official capacity, only.
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10. Defendants Unidentified FBI Agents, Unidentified CBP Agents, and Unid entified TSA Agents are em ployed by their respective agenci es and are being sued in their individual capacities.
Jurisdiction and Venue 11. Under U.S. Const. Art. III §2, this Court has jurisdiction because the rights sought to be prote cted her ein are secu red by the Unite d States Constitu tion. Jurisdic tion is prope r pursuant to 28 U.S.C. § 1331, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), Religious Freedo m Restoration Act, 42 U.S.C. § 2000bb, et seq., and federal common law. 12. This action also seeks declaratory reli ef pursuant to the Declaratory Judgm ent Act, 28 U.S.C. § § 2201-02, Rules 57 and 65 of th e Federal Rules of Civil Procedure, and pursuant to the general, legal, and equitable powers of this Court. 13. A substantial part of the unlawful acts alleged h erein were committed within the jurisdiction of the United States District Court for the Eastern District of Michigan. 14. Venue is p roper under 42 U.S.C. § 1391( e) as to all Defendants because Defendants are officers of agencies of the Un ited States sued in their official ca pacity and because th is judicial dis trict is where all Plain tiffs reside and where a substantial part of the events or omissions giving rise to the claims occurred.
Factual Background Abdulrahman Cherri 15. On or about March, 2010, Plaintiff Abdulra hman Cherri (“Cherri”) crossed the United States-Canada border for the purposes of reentering the United States.
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16. On or about that day, Cherri was s ubjected to an invasive body search, a prolonged detention lasting se veral hours, and prolonged ques tioning about his religion and religious practices.
17. After that day in March, 2010, Cherri crossed the United S tates-Canada border more than six times, and each time he crossed, Cherri was repeated ly subjected to invasive body searches, fingerprin ted, detained fo r several ho urs, and questioned rega rding his religion and religious practices.
18. During all detentions at the United States-Canada border, one or more Defendants asked Cherri substan tially sim ilar q uestions re garding his place of worship, th e location s at which he worships, and how frequently he attends his primary place of worship.
19. Cherri was subjected to substantially similar treatment and questioning by one or more Defendants every time he crossed the United States-Canada border since March, 2010.
20. On or about May, 2011, Cherri w as also asked substantially similar questions pertaining to his religion and religious practices by two FBI Agents, Defendants Agent Robert B. Thompson and Agent Jeff Sokolowski, at his home.
21. Cherri continues to be subjected to th e sam e prolonged deten tions and religious questioning each time he crosses the United States-Canada border.
22. As of the date of this filing, Cherri ha s not been provided with a reason for being subjected to the above treatment.
Wissam Charafeddine 23. On or about Nove mber, 2008, Plaintiff W issam Charafeddine (“Charafeddine”) crossed the United States-Canada border for the purposes of reentering the United States.
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24. On that day, Charafeddine’s vehicle was surrounded by arm ed CBP Agents, and Charafeddine was handcuffed, subjected to an invasive body search, a prolonged detention lasting several hours, and prolonged questioning about his religion and religious practices.
25. After that day in Novem ber, 2008, Char afeddine cro ssed the United States Canada border more than six times, including as recent as December, 2010.
26. Each time Charafeddine crossed the United States-Canada border, his vehicle was surrounded by armed CBP Agents, and he was handcuffed, subjected to an invasive body search, fingerprinted, and detained for several hours.
27. During all six detentions at the United States-Canada border, Charafeddine was questioned by one or more Defendants about his religion and religious practices.
28. Charafeddine continues to be subjected to the sa me prolonged detentions and religious questioning each time he crosses the United States-Canada border.
29. As of the date of this f iling, Charafeddine has not been provided with a reason for being subjected to the above treatment.
Ali Suleiman Ali 30. Plaintiff Ali Suleim an Ali (“Ali”) cro ssed the United States-Canada bo rder an d multiple United States international air ports of entry f or the purposes of reentering the Unite d States. 31. At both the United State s-Canada border and multiple United States international air ports of entry, Ali was handcuffed, subjected to prolonged detentions lasting several hours, and subjected to prolonged questioning by one or m ore Defendants about his religious philosophy and religious views, religious practices, and the locations at which he worships.
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32. Ali continues to be subjected to the same prolonged detentions and prolonged religious questioning when he crosses the U nited States-Canada border and United States international ports of entry, including as recent as December, 2011.
33. As of the date of this f iling, Ali has not been provided with a reason for being subjected to the above treatment.
Kheireddine Bouzid 34. On or about August 24, 2008, Plaintiff Kh eireddine Bouzid (“Bouzid”) crossed the United States-Canada border for the purposes of reentering the United States. 35. On that day on or about August 24, 2008, Bouzid’s vehicle was surrounded by armed CBP Agents with their guns drawn, and Bouzid was handcuffe d, subjected to an invasive body search, a prolonged detention lasting severa l hours, and prolonged questioning about his religion and religious practices. 36. After that day on or about August 24, 2008, Bouzid crossed the United StatesCanada border more than four times, including as recent as July, 2010, and each time he crossed the United States-Canada border, Bouzid’s vehi cle was surrounded by arm ed CBP Agents with their guns drawn, and Bouzid w as handcuffed, subjected to an invasive body search, fingerprinted, detained for several hours, an d questioned about his religion and religious practices. 37. During all detentions at the United States-Canada border, one or more Defendants questioned Bouzid regarding hi s place of worship, whether he prays five tim es a day, which Islamic sect he follows, and whether he prays hi s early m orning prayer at his prim ary place of worship.
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38. During at least one detention at the Un ited States-Canada Border, Bouzid was held in what he describes as a storage room and handcuffed to a stool.
39. During at least one detention at the Un ited States-Canada Border, Bouzid was held in what he describes as a jail cell.
40. Bouzid continues to be subjected to th e same prolonged deten tions and religious questioning each time he crosses the United States-Canada border.
41. As of the date of this filing, Bouzid ha s not been provided with a reason for being subjected to the above treatment.
Defendants’ Questioning of Religious Practices 42. CBP and TSA Agents are respo nsible for screen ing travelers who presen t themselves at ports of entry in order to enter the United States. 43. CBP and TSA Agents som etimes pull tr avelers aside and subject them to additional questioning, searches of their persons, or searches of their property and vehicles before allowing them to enter the United States. 44. Upon information and belief, Defendants began implementing a policy or a course of conduct under which Defendants ask Muslim Amer ican travelers attem pting to re-enter the United States through the United States-Canada border at multip le international po rts of en try a detailed list of questions about their religious beliefs and religious practices. 45. Upon information and belief, citizens of other faiths are not questioned about their religious beliefs and religious practices. 46. Defendants’ course of conduct or pol icy includes asking Muslim Am erican travelers, at m inimum, a fixed set of questions about their Islam ic religious practices, which include, but are not limited to the following:
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a. Which mosque do you go to? b. How many times a day do you pray? c. Who is your religious leader? d. Do you perform your morning prayer at the mosque? 47. The questio ning and tr eatment described abov e hum iliates Muslim Am erican travelers, such as Plaintiffs, and wrongfully stig matizes them as violent threats bas ed solely on a subjective assessment of their religious beliefs. 48. On March 24, 2011, the Council on Am erican-Islamic Relations, Michigan (“CAIR-MI”) f iled a c omplaint with the Of fice of Civil Rights and Civ il Lib erties, DHS, on behalf of the Plain tiffs and othe r Muslim Am ericans th at repo rted sim ilar tre atment and questioning related to their religion and religious practices. 49. In a letter d ated May 3, 2011 written in respons e to the complain t filed on March 24, 2011, Ms. Margo Schlanger, Officer for Civil Ri ghts and Civil Liberties, DHS, stated that “Under 6 U.S.C. § 345 and 42 U.S.C. § 2000 ee-1, our com plaint process does not provide individuals with legal or procedur al rights or rem edies. Ac cordingly, this Office is not able to obtain any legal remedies or damages on your behalf or that of the above complainants.” 50. The policy described above does not furthe r any legitimate border patrol purpose or compelling government interest.
COUNT I VIOLATION OF THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION 51. Plaintiffs hereby reallege and incorpor ate by reference the foregoing paragraphs of this Complaint as if fully set forth herein.
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52. In choosing to exercise their religion, Pl aintiffs are engaging in a constitutionally protected activity.
53. The action of targeting and detaining Pl aintiffs with a purpose of questioning them about their religious belief s and practices violates the First Am endment rights of Plaintiffs as guaranteed by the United States Constitution.
54. The detailed and invasive questioning of Pl aintiffs about their religious practices and the Def endants’ ex plicit policy that m andates the abov e-described trea tment constitu te an adverse action against Plaintiffs.
55. The explicit policy of targeting Plaintiffs and questioning them regarding their religious beliefs would deter an individual of ordinary firm ness from openly exercising his/her right to practice his/her religion. Prolonged dete ntions and interrogations based on Plaintiffs’ religious practices constitute ha rassment and reta liation that have caused psychological harm to Plaintiffs.
56. Gathering infor mation about Plaintiffs’ religious pract ices and beliefs does not serve a legitimate or valid law enforcement purpose or a compelling state interest.
57. Defendants’ m otive in targ eting Plainti ffs for a specif ic line of religious questioning at the border is both discriminatory and retaliatory.
Wherefore, Plaintiffs request this Honorable Court gran t injunctive relief barring Defendants from engaging in further unconstituti onal practices in questioning Plaintiffs about their re ligious belief s a nd reli gious practices, com pensatory da mages against the individual defendants, plus all such othe r r elief this Court d eems just and prop er includ ing costs and attorneys’ fees incurred in this action.
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COUNT II VIOLATION OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION 58. Plaintiffs hereby reallege and incorpor ate by reference the foregoing paragraphs of this Complaint as if fully set forth herein. 59. All Plaintiffs have been subjected to a stri kingly similar, if not identic al, line of questioning about their religious beliefs and religious practices as Muslim Am ericans by Defendants at the United States-Canada border and other international ports of entry. 60. The decision to target P laintiffs for a specific line of relig ious questioning based solely on th eir re ligious belief s and religiou s pr actices violates the Equal Protection rights of Plaintiffs guaranteed by the Fif th Amendment to the United States Cons titution, in that pe rsons of other faiths sim ilarly situated as Plaintiffs are not asked sim ilar questions about their religion and religious practices. 61. Questioning Plaintiffs about their religio n and religious practices does not serve a compelling state interest. Wherefore, Plaintiffs request this Honorable Court gran t injunctive relief barring Defendants from engaging in further unconstituti onal practices in questioning Plaintiffs about their re ligious belief s a nd reli gious practices, com pensatory da mages against the individual defendants, plus all such othe r r elief this Court d eems just and prop er includ ing costs and attorneys’ fees incurred in this action.
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COUNT III VIOLATION OF THE RELIGIOUS FREEDOM RESTORATION ACT
(42 U.S.C. § 2000bb, et seq.)
62. Plaintiffs hereby reallege and incorpor ate by reference the foregoing paragraphs of this Complaint as if fully set forth herein.
63. Defendants’ actions of targeting and de taining Plain tiffs with a p urpose of questioning them about their re ligious beliefs and practices s ubstantially burden Plaintiffs’ religious exercise of Islam.
64. Defendants’ actions are not in furtherance of a compelling government interest. 65. Even assum ing the Defendants’ actions furthered a com pelling governm ent interest, targeting and detaini ng Plaintiffs with the purpose of questioning them about their religious beliefs and religious prac tices is not th e least restrictive means of furthering any such interest. 66. As a direct and prox imate cause of Defe ndants’ actions, Plai ntiffs have been harmed. 67. Plaintiffs’ harm includes, but is not lim ited to, a chilling ef fect on Plain tiffs’ and other Muslim Americans’ right to free exercise of religion and free speech, and they are entitled to all legal and equitable remedies under the Religious Freedom Restoration Act (the “Act”). 68. Defendants’ unlawful a ctions caused Plaint iffs harm and they are e ntitled to injunctive r elief, and c ompensatory dam ages agai nst the individual Defendants, and all such other relief this Court deems just and proper in addition to costs and attorneys’ fees, as provided under the Act. Wherefore, Plaintiffs request this Honorable Court gran t injunctive relief barring Defendants from engaging in further unconstituti onal practices in questioning Plaintiffs about
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their re ligious belief s a nd reli gious practices, com pensatory da mages against the individual Defendants, plus all such other relief this Cour t deems just and proper, in addition to costs and attorneys’ fees as provided for under the Act.
WHEREFORE, Plaintiffs respectfully request: 1. A declaratory judgm ent that Defendants’ po licies, practices, and custom s violate the
First and Fifth Am endments to the United States Constitution, and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq.; 2. An injunction that: a. bars Defendants from engaging in fu rther unconstitutional practices by
questioning Plaintiffs about their religious beliefs and religious practices, and, b. requires Def endants to rem edy the constitu tional and statuto ry violation s
identified above, including, but not lim ited to, eliminating any existing policy whereby Plaintiffs, other Muslim Americans, and others sim ilarly situated are subject to religious questioning at ports of entry; 3. An award of attorneys’ fees, costs, and expenses of all litigation, pursuant to 28 U.S.C. § 2412; and, 4. Such other and further relief as the Court may deem just and proper.
JURY DEMAND NOW COM E Plaintiffs, by and through thei r undersigned counsel, and hereby dem and trial by jury of the above-referenced causes of action.
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Respectfully submitted,
AKEEL & VALENTINE, PLLC
/s/ Shereef Akeel________________ SHEREEF H. AKEEL (P54345) SYED H. AKBAR (P67967) Attorneys for Plaintiffs 888 W. Big Beaver Rd., Ste. 910 Troy, MI 48084 Phone: (248) 269-9595 shereef@akeelvalentine.com
AKEEL & VALENTINE, PLLC
/s/ Syed Akbar_________________
Attorney for Plaintiffs 888 W. Big Beaver Rd., Ste. 910 Troy, MI 48084 Phone: (248) 269-9595 hakbar@akeelvalentine.com
COUNCIL ON AMERICAN-ISLAMIC RELATIONS
/s/ Gadeir Abbas________________ GADEIR I. ABBAS (VA #: 81161) Attorney for Plaintiffs 453 New Jersey Avenue, SE Washington, DC 20003 Phone: (202) 742-6410 gabbas@cair.com
COUNCIL ON AMERICAN-ISLAMIC RELATIONS, MICHIGAN
/s/ Lena Masri__________________ LENA F. MASRI (P73461) Attorney for Plaintiffs 21700 Northwestern Hwy, Ste. 815 Southfield, MI 48075 Phone: (248) 559-2247 lmasri@cair.com
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Dated: April 13, 2012

COUNCIL ON AMERICAN-ISLAMIC RELATIONS, OHIO
/s/ Jennifer Nimer_______________ JENNIFER NIMER (OH#: 0079475) Attorney for Plaintiffs 1505 Bethel Road, Ste. 200 Columbus, OH 43220 Phone: (614) 783-7953 jnimer@cair.com

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 2:12-cv-11656-AC-LJM Doc # 44 Filed 06/11/13 Pg 1 of 34 Pg ID 386

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ABDULRAHMAN CHERRI, et al., Plaintiffs,
vs. ROBERT S. MUELLER III, et al.,
Defendants. _____________________________/

Case No. 12-11656 HON. AVERN COHN

MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART OFFICIAL-CAPACITY DEFENDANTS’ MOTION TO DISMISS (Doc. 32)

I. INTRODUCTION This case involves a challenge to what planitiffs say is a policy, custom and practice of questioning Muslim-American’s as they enterthe United States regarding their religious beliefs and practices in violation of their First and Fifth Amendment rights. Plaintiffs Abdulrahman Cherri, Wissam Charafeddine, Ali Suleiman Ali, and Kheireddine Bouzid (collectively, “Plaintiffs”), each being of the Muslim religion, allege that on separate multiple occasions when crossing the United States–Canada border in Detroit for the purposes of reentering the United States, they were profiled and subjected to invasive body searches and prolonged detentions. They donot challenge these searchesor detentions. Plaintiffs also allege that during these detentions they were questioned at secondary inspections about Islamic religious philosophy and views, practices, and locations where they worship pursuant to an oficial United States Customs and Border Protection (CBP), Federal Bureau

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of Investigation (FBI), and United States Department of Homeland Security (DHS) policy,

custom and practice. Plaintiffs are challenging the religious questioning.

Plaintiffs are suing:

Robert S. Mueller, the Director of the FBI;

David V. Aguilar, Deputy Commissioner and Acting Commissioner of the CBP;

Janet Napolitano, Secretar y of the DHS (collectively, the “Official-Capacity Defendants);

and

Robert B. Thompson, an agent employed by the FBI;

Jeff Sokolowski, an agent employed by the FBI; and

Unidentified FBI and CBP agenst (collectively, the “Individual-Capacity Defendants).

The first amended complaint is in five counts, phrased by Plaintiffs as follows:

Count I: Violation of the First Amendment (Free Exercise of Religion);

Count II: Violation of the First Amendment (Establishment Clause);

Count III: Violation of the First Amendment (Retaliation);

Count IV: Violation of the Fifth Amendment (Equal Protection); and

Count V:

Violation of t he Religious Freedom Restoration Act, 42 U. S.C. §§ 2000bb, et seq.

In an order issued simultaneously with th is memorandum and order, the claim s

against the Official-Capacity Defendants have beenbifurcated from the claims against the

Individual-Capacity Defendants and will be handled separately. This memorandum and

order relates only to the Official-Capacity Defendants.1

1 In this memorandum and order, the Official-Capacity Defendants are referenced as the Defendants.
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Plaintiffs seek, in addition to attorneys’ fees and costs,
(1) “[a] declaratory judgment that Defendants’ policies, practices, and customs violate the First and Fifth Amendments to the United States Constitution, and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq. ; and (2) “[a]n injunction that: a. bars De fendants from engaging in further unconstitutional practices by questioning Plaintiffs about their religious beliefs and religious practices, and, b. requires Defendants to remedy the c onstitutional and statutory violations identified above, in cluding, but not limited to, eliminating any existing policy whereby Plaintiffs, other Muslim Americans, and others similarly stiuated are subject to religious questioning at ports of entry.”
(Doc. 21 at 20–21, Pls’. Am. Compl.).2
Now before the Court is Defendants’ moiton to dismiss the amended complaint (Doc.
32). For the reasons that follow, the mtoion is GRANTED IN PART and DENIED IN PART.
The Court finds that (1) Plaintiffs have standing to sue and the claims in Plaintiffs’
first amended complaint are justiciable; (2) Plaintiffs have adequately pled the existence
of an official policy, custom and practice; and (3 ) pursuant to that official policy, custom,
and practice, Plaintiffs have sufficiently stated a Fifth Amendment claim (Count IV).
Plaintiffs, however, have not stated a claimupon which relief can be granted under the First
Amendment or the RFRA.
II. BACKGROUND
A.
Because the Court addresses Plaintiffs’ claims in response to Defendants’ motion
to dismiss, the facts as alleged in the first amended complaint (Doc. 21) are accepted as
2 Because of concern about what Plaintiffs expect in the form of relief should they prevail, the Court requested Plaintiffs lodge with the Court the form of the judgment to be entered should they prevail. The proposed judgment is attached as Exhibit A.
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true and summarized below. B.
Plaintiffs are four Musli m-American c itizens residing in Michigan. On separate occasions, Plaintiffs have individually crossed the United States–Canadaborder in Detroit for the purposes of reentering ht e United States. Each Plaintiff has done so multiple times. The first time one of the Plaintiffs reentered the United States at the border was in late 2008. Since 2008, Plaintiffs continued t o tr avel from the United States to Canada, reentering the United States at the border, at least through December of 2011.
Each time Plaintiffs reentered the United States at the border, they were subjected to unr easonable searches, detentions, and prolonged questioning about their Islamic practices and beliefs by unidentified CBP and FBIagents. Plaintiff Ali not only was subject to invasive religious questioning at the United States–Canada border, he was simila rly detained and questioned about his I slamic practices and beliefs when returning to the United States at “multiple United States international air ports of entry.”
Plaintiffs were repeatedly asked the following questions, among others, by CBP and FBI agents3 at the border:
Which mosque do you go to? How many times a day do you pray? Who is your religious leader? Do you perform your morning prayer at the mosque? Muslim-American travelers are referred for secondary inspection at the bordsermore
3 There is no explanation of why an FBI agent was at a border crossing. 4

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frequently than American travelersof other faiths. In additoi n, defendants Mueller, Aguilar,
and Napolitano, through their respective agenc ies, “were aware of and implemented a
policy or encouraged, permitted, or tolerated a course of conduct or pattern of practice by
CBP Agents and FBI Agents, which includes asking Muslim American travelers a
substantially similar set of questions about their Islamic beliefsand practices.” This line of
questioning “targets, discriminates against, humiliates, substantially burdens, and creates
a chilling effect upon Muslim American travel ers, including Plaintiffs, and wrongfully
stigmatizes them as violent threats based solely on a subjectiveassessment of their Islamic
beliefs and practices.”
C.
On October 1, 2010, a Senior Advisor for DHS’s Office fo r Civil Right s and Civil
Liberties (“CRCL”) wrote a legal memorandum to Margo Schlanger, an officer for CRCL,
concerning “[l]aw enforcement questioni ng regarding religion.” The memorandum
discussed the constitutionality of religious questioning at the border. The Senior Advisor’s
memorandum is summarized in the first paragraph:
You asked me to examine case law regarding the permissible bounds of al w-enforcement questioning of individuals regarding their religion, both at the border and within the United States. The query would encompass border inspections as well as consensual and custodial police interr ogation, and law on religious profiling would also be relevant. But there is m uch less law in this area than one would expect. So, notwithstanding the fact thatreligious questioning and religious profiling implicate First Am endment consider ations that questioning or profiling on ethnici ty or race do n ot, there is relatively little to say, otherthan that courts presume the same limitations on religion-based police activity as on racecognizant policing.
D.
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On March 24, 2011, Plaintiffs’ lawyer, on behalf of Plaintiffs and six others, sent a
letter to the CRCL informing the DHS about the “prolonged detentions, invasive and
humiliating body searches at t he border, and inappropriate questioning that pertains to
religion and religious practices by [CBP] personnel.”
On May 3, 2011, Schlanger responded to Plai ntiffs’ lawyer by letter. Schlanger
informed Plaintiffs’ lawyer, in pertinent part, that
CRCL has received a number of complaints like yours, alleging that [CBP] officers have engaged in inappropriate questioning about religious affiliat ion and practices during border screening. We will add these compla ints to the investigation we are opening on the subject.
. . . .
[O]ur complaint process does notprovide individuals with legal or procedural rights or remedies. Accordingly, this Office is not able to obtain any legal remedies or damages on your behalf or that of the above complainanst . Instead, we use complaints like yours to find and address problems in DHS policy and its implementation.
E.
Also on May 3, 2011, Schlanger and CRCL legal counsel Audrey Anderson wrote
a memorandum to CBP commissioner Alan Bersin and CBP chief counsel Alfonso Robles
informing them of various statements t he CRCL received about CBP’s questioning of
Muslims about their religion at land and air ports of entry. The memorandum informed
Bersin and Robles that CRCL
has received numerous accountsfrom American citizens, legal permanent residents, and visitorswho are Arab and/or Muslim, alleging that officials from[CBP] repeatedly question them and other mem bers of their communities about their religious practices or other First Amendm ent protected activ ities, in violation of their civil rights or civil liberties, or otherwise target
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them for extra scrutiny, questoi ning, or inappropriate comment based on their ethnicity or apparent religion. The statements to CRCL alleged similar religious questioning at: 1. The Logan International Airport in Boston, Massachusetts; 2. Numerous ports of entry in Buffalo, New York including the Rainbow Bridge Port of Entry, the Champlain Service Port, and the Lewiston Bridge Complex; 3. The Fort Lauderdale Airport in Miami, Florida; 4. The Pacific Highway Crossing in Seattle, Washington; 5. Numerous port s of entry in De troit, Michigan including the Ambassador Bridge Passenger Facility, the Detr oit-Windsor Tunnel, the Detroit Metropolitan Airport, the Port Huron Port of Entry, and other unknown ports of entry; 6. The Atlanta Hartsfield/Jackson International Airport in Atlanta, Georgia; 7. The John F. Kennedy International Airport in New York, New York; and 8. Unspecified ports of entry. At these various ports of entry, those who contacted the CRCL alleged that they were asked questions by CBP and/or FBI agentsabout their religious practices and beliefs. The type of questions included, among others: What mosque do you attend? How often do you pray/attend mosque? Why do you go to the mosque? Are you an Imam at the mosque? Are your family members strictly religious? When did you become a Muslim? When did you convert?
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Are you Shi’a or Sunni? Do you pray five times a day, in the mosque? Are there any extremists or terrorists at the mosque? Do you know any extremists? Do you consider yourself a religious person? Does anybody at the mosque talk about going back to the motherland? Do you give donations? Don’t you have to pay a certain amount of your money religiously? Which Muslim charities have you donated to? Do you belong to any organizations? Are you affiliated with any terrorist organizations? Do you know any terrorists? Who is the Imam at your mosque? Who else prays at your mosque? Which Muslim countries have you traveled to?During your travel to these countries, have you been approached by anyone suspicious? Do you know Anwar al-Awlaki? How much money have you brought to your community? Do you visit any Islamist extremist websites? Are you part of any Islamic tribes? Have you ever been to a “madrassa” or studied Islam full-time? The memorandum concluded,
In short, CRCL has received numerous co mplaints on this topic, with certain obvious commonalities among them. We
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should note that we have everyexpectation that at least some of the complainants are the subject of look-outs or watchlisting. Our investigation will be sensitive to the security needs served by border questioning of such individuals.
F. Both Defendants’ and Plaintiffs’ counsel at oral argument stated that they were not aware of any further correspondence after the May 3 letters. On April 13, 2012, Plaintiffs filed this lawsuit.
III. LEGAL STANDARDS A. Motion to Dismiss
A motion to dismiss under Fed. R. Civ . P. 12(b)(6) tests the sufficiency of a complaint. To survive a Rule 12(b)(6) mo tion to dismiss, the complaint 's “ factual allegations must be enough t o raise a r ight to relief above the speculative level on the assumption that all of the allegat ions in the com plaint a re t rue.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). See also Ass’n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007). TheCourt is “not bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). Moreover, “[o]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. Thus, “a court considering a motion to dismiss can c hoose to begin by identifying pleadin gs that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. “While legal conclusions can provide t he framework of a complaint, they must be supported by factual allegations. When thereare well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an
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entitlement to relief.” Id. In sum, “[t]o survive a motion todismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Id. at 678 (internal quotation marks and citation omitted).
B. Subject Matter Jurisdiction A Fed. R. Civ. P. 12(b)(1) motion seeks dismissal for a court’s lack of subject matter jurisdiction. The motion may be based on either a facial attack or a factual attack on the allegations of the complaint. Tri-Corp Mgmt. Co. v. Praznik, 33 F. App’x 742, 745 (6th Cir. 2002). If subject matter jurisdiction is f acially attacked, the court must take the material allegations in t he complaint as true and construe them in a light most favorable to the nonmoving party. United States v. A.D. Roe. Co., 186 F.3d 717, 721–22 (6th Cir. 1999). If, however, there is a challenge to the factual existence of subject matter jurisdiction, the court is “empowered to weigh the evidenc e and no presumptions apply as to the truthfulness of the relator's allegations.” Id.
IV. DISCUSSION This case presents an issue of first impression that, to the Court’s knowledge, has never been addressed by another court in the nation. In short, the question before the Court is whether the Governm ent has unfettered discretion to question at the border a specific class of individuals about their religious practices and beliefs after being profiled and detained solely because of those religious practices and beliefs. Defendants first say that theCourt need not reach the mertis of the dispute because Plaintiffs lack standing and the claims in the first amended complaint are nonjusticiable. Next, Defendants say that Plaintiffs have not sufficiently alel ged the existence of an official policy, custom and practice. Finally, Defendantsay that Plaintiffs’ first amended complaint
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cannot withstand scrutiny under F ed. R. Civ. P. 12(b)(6). The Court discusses these arguments in turn.
A. Plaintiffs Have Standing and the Claims are Justiciable Plaintiffs seek prospective relief against Defendants by way of an injunction that would prevent the government from asking Plaintiffs about their specific Islamic practices and beliefs at the border. Defendants say that Plaintiffs’ claims are nonjusticiable for two reasons: (1) Plaintiffs have not sufficiently alleged an injury in fact to satisfy standing requirements; and (2) prospective injunctive relief impermissibly intrudes into Executive authority at the border. The Court disagrees with both arguments.
1. Standing The United States Constitution “limits feder al-court jurisdiction to actual cases or controversies.” Green Party of Tenn. v. Hargett, 700 F.3d 816, 828 (6th Cir. 2012). The party invoking f ederal jurisdiction bear s the burden of establishing standing. Lujan v. Defenders of Wildlife , 504 U. S. 555, 561 (1992). A plai ntiff is required to satisfy each element of standing “in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evid ence required at success ive stages of the litigation.” Michigan v. Bay Mills Indian Comm., 695 F.3d 406, 411 (6th Cir. 2012) (quoting Lujan, 504 U.S. at 561). As the Sixth Circuit recent ly explained, “[t] he Supreme Court has stated that ‘the irreducible constitutional minimum of standing contains three elements’: (1) an ‘in jury in fact’; (2) ‘a causal connection between the injury and the conduct complained of’; and (3) that ‘the injury will be redressed by a favorable decision.’” Rasins Landscape & Assocs., Inc. v. Mich. Dep’t of Transp., ___ F. App’x ___, 2013 WL 2349274, at *2 (6th Cir. 2013)
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(quoting Lujan, 504 U.S. at 560–61). In addition t o the above requirements, t here are three prudential requirements a
plaintiff must satisfy. City of Cleveland v. Ohio, 508 F.3d 827, 835 (6th Cir. 2007). First, “a plaintiff must assert his own legal righst and interests”; second, “the claim must be more than a generalized grievance”; and third, “in statutory cases, the plaintiff’s claim must fall within the zone of interest regulated by the statute in question.” Id. (citing Coyne v. Am. Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999) (internal quotations omitted)).
Defendants say that Plaintiffs lack standingto seek prospective relief because they admit that they no longer cross the border. Three of the plaintiffs, Cherri, Charafeddine, and Bouzid specifically allegethat they no longer cross theborder “to avoid being subjected to the above treatment.” (Doc.21 at 5–8, Pls’. Am. Compl. ¶¶ 25,34, 45). Plaintiff Ali does not allege that he no longer crosses the border, but he says that the most recent time he crossed the border was in December of 2011. (Id. at 7, ¶ 37). Thus, Defendants say that, because a substantial amount of time has pass ed since Plaintiffs have last crossed the border, and none of them specifically allege that they plan tocross the border in the future, they hav e not sufficiently alleged an injury in fact. Instead, Defendants contend that Plaintiffs have only asserted an unreasonable probabilistic injury. The Court disagrees.
The Supreme Court has explani ed that the “injury in fac”telement of standing cannot be satisfied if the claimed injury is speculative and hypothetical. In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the plaintiff brought a civil rights action against the City of Los Angeles seeking, among other things, injunctive and declaratory relief to prevent the Los Angeles police from using illegal chokeholds in routine traffic stops. Id. The plaintiff was stopped by Los Angeles police officers for a tar ffic or vehicle code violation and, “although
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Lyons off ered no resistance or threat what soever, the officers, without provocation or justification, seized Lyons and applied a ‘chokehodl’–either the ‘bar arm control’ hold or the ‘carotid-artery control’ holdor both–rendering him unconsciousand causing damage to his larynx.” Id. at 97–98.
The Supreme Court in Lyons held that the plaintiff did not have standing to seek prospective injunctive relief because the threat of future injury was attenuated:
That Lyons may have been illegally choked by the polic e on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against t he City, does nothing to establish a real and immediate threat that he woul d again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconscious ness without any provocation or resistance on his part. Id. at 105. In other words, the plaintiff did not have a reasonable basis to assert that the claimed probabilistic injury would occur in the future. This case is materially different than Lyons. Unlike Lyons, Plaintiffs have alleged an injury in fact that is realand immediate, not hypothetical. In other words, Plaintiffs’ fear that they will be questioned about their religious practices and beliefs if the y cross the border is reasonable based on theirpast visits at the border. Although three of the plaintiffs say that they no longer cross ht e border, they say it is onlybecause they do not want to be profiled and questioned about their religious practi ces and beliefs. Thus, Plaintiffs claim that they are forced to forego a lawful acti vity– traveling from one country to another– in order to avoid being profiled and questioned about their religious practices and belief s. Unlike Lyons, where the plaintiff wouldfirst have to violate the law before he would ever be subjected to the illegal chokehold again, Plaintiffsclaim that their lawful movements to and
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from the United States are hni dered because of the real and immediate threat that they will

be stopped at the border and questioned about their religious practices and beliefs.

Further, in Lyons, the plaintiff was not exposed tothe same repeated harm that the

Plaintiffs allege to have suffe red in this case– he w as choked once. H ere, the Plaintiffs

have c rossed the border multiple times and each time were subjected to the same

treatment. Plaintiffs’ injury is real and immediate because, unlike a one time occurrence,

taking Plaintiffs’ allegations in the first am ended complaint as true, they experienced the

same treatment at the border multiple times on a consistent basis.

Defendants misplace their reliance on Clapper v. Amnesty International USA, 133

S.Ct. 1138 (2013) to argue that Plaintiffs have notalleged a “certainly impending” injury in

fact. InClapper, the Supreme Court clarified that, toadequately allege an injury in fact, the

“‘threatened injury must be certainly impending. . .’ and ‘[a]llegations of possible future

injury’ ar e not s ufficient.’” 133 S.Ct. at 1147 (alterations and emphasis in original). A

certainly impending injury, the Supreme Court reasoned, is one which does not rely “on a

highly attenuated chain of possibilities.” Id. at 1148.

Clapper involved a challenge to Section 702 of the Foreign Intelligence Surveillance

Act (the “FISA”) by respondents who were a ttorneys and human rights, labor, legal and

media organizations. Id. at 1142, 1145. Section 702 of the FISA “allows the Attorney

General and Director of National Intelligence toacquire foreign intelligence information by

jointly authorizing the surveillance of individuals who are not ‘United States persons’ and

are reasonably believed to be locat ed outside the United States.”

Id. at 1142.

Respondents claimed that their work “require s them to engage in sensit ive international

communications with individuals who they believe are likely targets of surveillance under

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[the FISA].” Id. Accordingly, respondents sought a dec laration that Section 702 of the FISA is unconstitutional, and an injunction against the surveillance. Id.
The Supreme Court rejected respondent s’ challenge to the FISA on standing grounds. The Supreme Court hel d that “respondents’ theory of future injury [wa]s too speculative to satisfy the we ll-established r equirement that threatened injury must be ‘certainly impending.’” Id. at 1143 (citing Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (emphasis in original)). The Supreme Courtreasoned that it was speculative whether the government would use surveilal nce under the FISA to target communications involving the respondents. Id. at 1148. Indeed, the Supreme Cout rstated, “Simply put, respondents can only speculate as to how the Attorney Genear l and the Director of National Intelligence will exercise their discretion in determining which communications to target.” Id. at 1149.
The respondents in Clapper also claimed that they were suffering present injury based on the risk of surveillance under the FISA forcing them to expend costs to protect the confidentiality of their international communications. Id. at 1151. The Supreme Court concluded, however, that “respondents cannotmanufacture standing by choosing to make expenditures based on hypothetical future ha rm that is not certainly impending.” Id. at 1142. The Supreme Court explained,
Respondents’ contention thatthey have standing because they incurred certain cos ts as a reasonable reaction to a risk of harm is unavailing– because t he h arm respondents seek to avoid is not certainly impending. In other words, respondents cannot manufacture standing merely by inf licting harm on themselves based on their fear s of hypothetical future harm that is not certainly impending. Any ongoing injuries that respondents are suffering are not fairly traceable to [Section 702 of the FICA]. If t he law were otherwise, an ent erprising plaintiff would be
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able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear. Id. at 1151 (internal citations omitted). Clapper is inapposite. UnlikeClapper, plaintiffs have alleged a certainly impending injury that is fairly traceable to Defendants’ purported conduct at the border. Plaintiffs’ decision to stop traveling across the border isbased on a reasonable fear that they would be questioned about their religious practices and beliefs. Indeed, Plaintiffs allege that they were stopped and questioned about their religious practices and beliefs each time that they crossed the border on numerous occasions. In Clapper, the plaintiffs did not claim that their communications were ever monitored orthat the Government had applied to monitor their communications. However, in this case, taking the allegations of the first amended complaint as true, the only reason Plaintiffs do not cross the border is to avoid harm that is real and immediate and that has occurred onnumerous past occasions. Plaintiffs’ fear, again taking the allegations in the first amended complaint as true, is well-founded and the claimed injury is certainly impending. Plaintiffs’ probabilistic injury is comparable to the injury in fact that the Su preme Court found to be sufficient inFriends of the Earth, Inc. v.Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000). InLaidlaw, various environmental groups, Friends of the Earth, Inc. (“FOE”), brought suit under the Clean Water Act ( the “CWA”), claiming that Laidlaw Environmental Services, (TOC) In c. (“Laidlaw”) discharged toxic pollutants of mercury compounds into the North Tyger Riv er. 528 U.S. at 176–77. Laidlaw asserted that FOE lacked standing to seekinjunctive relief “because ht e plaintiff organizations failed to show that any of their members had sustained or faced the threat of any ‘injury in fact’
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from Laidlaw’s activities.” Id. at 181. The plaintiffs submi tted affidavits stating that they

would like to fish, hike, picnic, swim, boat, etc ., in the river, like they used to do before

Laidlaw discharged mercury into the river, butthat they did not continue to do so because

they were concerned about harmful pollutants in the water. Id. at 181–82. The Supreme

Court reasoned that this was sufficient to allege an injury in fact:

These sworn statements, as the District Court determined, adequately documented injury in fact. We have held that environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons “for whom the aesthetic and recreational values of the area will be lessened” by the challenged activity.

. . . .

[T]he affidavits and testimony presented by FOE in this case assert that Laidlaw’s dischar ges, and the affiant members’ reasonable concerns about the effec ts of those discharges, directly affected those affiant s’ recreational, aesthetic, and economic interests.

. . . .

[I]t is undisputed that Laidlaw’s unlawful conduct–discharging

pollutants in excess of permit limits–was occurring at the time

the complaint was f iled. Under Lyons, then, the only

“subjective” issue here is “[t] he reasonableness of [the] fear”

that led the affiants to respond to that concededly ongoing

conduct by refrai ning from use of the N orth Tyger R iver and

surrounding areas. Unlike t he dissent, we see nothing

“improbable” about the propos ition that a company’s

continuous and pervasive illegal discharges of pollutants into

a river would cause nearby residents t

o c urtail their

recreational use of that wat erway and would subject them to

other economic and aesthetic harms. The proposit ion is

entirely reasonable, the District Court found it was true in this

case, and that is enough for injury in fact.

Id. at 183–84.

Like Laidlaw, where the plaintiffs ceased using the river based on their reasonable

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subjective fear that they would be inj ured, Plaintiffs say that they ceased crossing the border based on a reasonable fear that ht ey would be stopped and questioned about their religious beliefs. Plaintiffs allege that they have crossed the border multiple times. Each time, they say that they were stopped ast econdary inspections and questioned about their religious practices and beliefs. Thus, taking ht e allegations in the first amended complaint as true, Plaintiffs’ decision to stop cr ossing the border was reasonable and is enough to establish an injury in fact.
In Laidlaw, it was undisputed that the harm– thedischarge of pollutants in the river– was still occurring at the time the complaint wa s filed. De fendants say that this case is different because it is not undisputed that Plaintiffs would face the same harm if they were to cross the border today. However, unlikeLaidlaw where the harm was easily identifiable whether or not the plaintiffs used the river, under Defendants’ reasoning, Plaintiffs her e would be required to subject themselves to the injury that theyare challenging just to have standing to sue. T hat result is not consistent with Laidlaw’s holding. It is enough that Plaintiffs stopped crossing the border in order to avoid a “certainly impending” injury.
For these reasons, Plaintiffs have standing. 2. Executive Authority at the Border
Next, Defendants say the Court lacks subject matter jurisdiction to interfere wit h Executive authority at the border. The Supreme Court has recognized, in the cont ext of Fourth Amendm ent suspicionless inspections at the border, that “[t]he Government’s interest in preventing the ent ry of unwanted persons and effect s is at its zenith at t he international border.” United States v. Flores-Montano, 541 U.S. 149, 152 (2004). Indeed, the Supreme Court explained that “[i]t is axiomtaic that the United Staet s, as sovereign, has
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the inherent authority to prot ect, and a paramount interest in protec ting, its territorial integrity.” Id. at 153. Plaintiffs, however, do not challenge the Government’s power to detain individuals and conduct suspicionless sear ches at the border. Rather, Plaintiffs challenge t he nature of the i nquiry into their specific religious practices and beliefs. Through this line of questioning, Plaintiffs sa y they are characterized as threats based solely on their religious practices and beliefs.
The closest case resembling the facts alleged in the first amended complaint, which is distinguishable from t his case, is Tabbaa v. Chertoff , 509 F.3d 89 (2d Cir. 2007). In Tabbaa, a group of United States ctiizens brought suit against ht e Government alleging that their rights were violated when they were detained and searched by CBP when returning from an Islamic conference in Canada. Id. at 92. The U.S. Bureau of Customs and CBP “received intelligence that gave them reason to believe that persons with known terrorist ties would be attending certain Islamic conef rences to be held during the year-end holiday season of 2004, including the Reviving the Isla mic Spirit Conference at the Skydome in Toronto, Canada.” Id. The CBP therefore “ instituted a special inspection operation pursuant to which all individuals who attendedthese conferences and sought entry into the United States were subject to the kind of screening procedure normally r eserved f or suspected terrorists.” Id. Pursuant to an official policy, CBP officials were instructed to:
(a) identify and examine all persons associated with any of the Islamic conferences at issue who sought entry into the United States, (b) contact CBP’s Na tional Target ing Center upon encountering conf erence participants “in order to determine whether individuals seeking to enter the United States posed a par ticular threat,” and (c) question conference attendees about their activities during t heir trip and examine t heir documentation and per son and vehicles for “evidence of terrorist-related activities, su ch as plans, m oney, or even
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weapons.” The [policy] also permitted, but did not require, border officials to fingerpr int and photogr aph conference attendees. The purpose of these measures–which were designed to process travelers who are suspected terrorists–was to “confirm each individual’s identity and verify that they were not on any watch list of suspected terrorists, or seeking to use the conference asa cover for crossing the U.S. border, or otherwise involved in illegal activity, or carrying any illegal weapons, documents, m onetary instruments, or any other prohibited items across the border.” Attendance at one of the Islamic conferences at issue was the sole factor that triggered the enhanced processing.
Id. at 94.
The Second Circuit in Tabbaa, affirming the district court’s grant of summary
judgment, determined that the searches and detentions of the plaintiffs did not violate the
Fourth Amendment because the Government hasbroad powers to conduct searches at the
border. Id. at 97. The intrusive questoi ns plaintiffs were asked about their activities at the
conference, the content of the lectures they attended, and their reasons for attending, the
Second Circuit reasoned, were questions typica lly asked to “prospective entrants in an
effort to determine the places they have vistied and the purpose and duration of their trip.”
Id. at 98–99 (citations omitted). Likewise, the Second Circuitdid not find the fingerprinting
and photographing of plaintiffs to be invasive,“especially considering that the photographs
and fingerprints were used solely to verify planitiffs’ identities and ht en were discarded from
the government’s databases .” Id. at 99 (citing Davis v. Mississippi , 394 U.S. 721, 727
(1969)).
Having determined that the searches and detentions were permissible under the
Fourth Amendment, theTabbaa court of appeals next turned towhether and to what extent
the Government’s actions burdened the plaint iffs’ First Amendment right of freedom of
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expression. Id. at 101. The court of appeals det ermined that “plaintiffs suffered a significant penalty, or disability, solely by vritue of associating atthe RIS Conference: they were detained for a lengthy period of time, interrogated, fingerprinted, and photographed when others, who had not attended the conf erence, did not have to endure these measures.” Id. at 102. Notwithstanding, howev er, the court of appeals found that the Government’s compelling interest in protecting the nation from terrorism outweighed the burden on plaintiffs’ right offreedom of expression. Id. at 103. Indeed, the court of appeals explained that “‘[i]nterception and detection at the international border crossings is likely the most effective way to protect the Unit ed States from terrorists and instr uments of terrorism.’” Id. (citations omitted).
This case, however, is different thanTabbaa. Plaintiffs do not challenge detentions at the border. Plaintiffs assert a narrow challenge to Defendants’ inquiry about Plaintiffs’ religious practices and beliefs. I n simple terms, Plaintiffs allege religious profiling at the border. Unlike Tabbaa, where the case reached the court of appeals on summary judgment, this case is presently before the Court on Defendants’ motion to dismiss. The Court is not in a position t o det ermine whether Defendants religiously profiled and questioned Plaintiffs at the border; the Court mu st, for purposes of Plaintiffs’ motion to dismiss, assume that Defendantsdid. At this stage in the csae, taking Plaintiffs’ allegations in the first amended complaint as true, read together with the letters attached as exhibits to the first amended complaint, they have suffi ciently alleged a constitutional violation, explained infra. The Court bears in mind the significant differences between a motion to dismiss and one for summary judgment. Thus, restcrited to the allegations in Plaintiffs’ first amended complaint, the Court cannot assess at this stage in the case the legality and
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propriety of Defendants’ conduct. B. Plaintiffs Have Sufficiently Pled Existence Of An Official Practice, Policy Or Custom
Defendants say that, even if ht e Court has subject matter jurisdiction, Plaintiffs have not sufficiently pled the existence of an official policy. Defendants are mistaken.
The Sixth Circuit recently dismissed a complaint in which the plaintiffs challenged a claimed Government “policy, practice, procedure, and/or custom of [the Government] that targets for disfavored treatment those individuals and groupsthat [the Government] deem to be ‘rightwing extremists.’” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 367 (6th Cir. 2011). The complaint, the Sixth Cciruit reasoned, did not “plausibly allege the existence of the claimed . . . policy pursuant to which [plaintiffs] allege constitutional violations.” Id. at 372. In fact, the Sixth Circuit noted that “it is altogether unclear what constitutes the . . . [p]olicy in light of [p ]laintiffs’ vague and c onclusory allegations and arguments on appeal. . . The Amended Complaintidentified no document, policy directive, or anything else that would constitute the . . . [p]olicy” Id. at 372–73.
Defendants misplace their reliance onCenter for Bio-Ethical Reformin arguing that Plaintiffs have not sufficiently alleged t he existence of an official policy, custom and practice. This case is not like Center for Bio-Ethical Reform . First, Plaintiffs allege that each time they cross the border, they are saked the same type of questions inquiring about their religious practices and beliefs. Secondt,he CRCL wrote an internal memorandum the subject of which was the constitutionality oflaw enforcement questoi ning regarding religion at the border. The CRCL memorandum is atta ched to the first amended complaint and referenced in paragraph 54. Thir d, in r esponse to a letter s ent by Plaintiffs’ counsel
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informing the CRCL about the treatment of Muslim-American’s at the border, the CRCL informed Plaintiffs’ counsel that it “has received a number of complaints like yours, alleging that [CBP] officers have engaged in inappropriatequestioning about religious affiliation and practices during border screening.” Finally , the CRCL wrote a memorandum to CBP personnel informing them of twenty-five complaints from Muslim-American’s that upon entry into the United States at var ious ports of ent ry, they were subjected to similar religious questioning. In sum, Plaintiffs have alleged su fficient facts to show that their alleged treatment at the border was pursuant to an official policy, custom and practice.
C. The Claims Having determined that the claims set forth inPlaintiffs’ first amended complaint are justiciable, and that P laintiffs have suffi ciently pl ed the ex istence of an offi cial pol icy, custom and practice, the Courtturns to Defendants’ next argumentfor dismissal: Plaintiffs’ first amended complaint fails to state a clami upon which relief can begranted. The Court discusses separately each count contained in Plaintiffs’ first amended complaint.
1. Freedom of Expression (Counts I and V) Counts I and V of the first amended complaint are brought under the free exercise clause of the First Amendment and the Religious Freedom Restoration Act. In essence, plaintiffs claim that, by detaining them at secondary inspections and asking them intrusive questions about their religious practices andbeliefs, Defendants have deterred them from freely exercising their religious beliefs. Plaintiffs’ claims are fatally flawed. The First Amendment provides, in part, tha“tCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend I. Relatedly, the RFRA provides that t he “Government shall not substantially burden a
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person’s exercise of religion even if the burden results from a rule of general applicability, except . . . if it demonstrates that applic ation of the burden to the person– (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C.§§ 2000bb-1(a)–(b). Like the RFRA, the First Amendment freedom of expressoin guarantee allows “pubilc authorities [to] enforce neutral and generally applicable rules and may do so even if they burden faithbased conduct in the process,” so long as such rules “‘advance[] interests of the highest order and [are] narrowly tailored in pursuit of those interests.’” Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012) (citing Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993)).
Defendants say that Counts I and V of the first amended complaint must be dismissed because Plaintiffs have not established that being queried about their religious practices and beliefs at the border infringes or burdens their ability to freely exercise their religion. Their position is well-taken.
The first amended complaint is devoid of any factual allegat ion that, based on Defendants’ questioning of Plaintiffs at the bodrer, they are burdened intheir ability to freely exercise their religious belie fs. I ndeed, Plaintiffs do not allege that they are unable to attend their respective places of worship oor therwise freely exercise their Islamic practices and beliefs. As Defendants note,
Plaintiffs have not alleged thatsuch questioning requires them to affirm or deny a belief that is contrary to their faith, or to choose between following tenets oftheir faith and receiving an important government benefit. Nor have plaintiffs alleged that the Government has sought to impose civil or criminal sanctions on religiously motivated conduct. Plaintiffs’ only allegations in the amended complaint attempting to assert any
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burden on their religious exerciseare conclusory, circular, and devoid of concrete factual content. (Doc. 32 at 21, Official-CapacityDefs. Mot. to Dismiss). Indeed“,[a]t most, plaintiffs’ factual allegations suggest a burden on their ability to cross the border quickly, not their ability to practice Islam .” ( Id. at 22). Accordingly, Plaintiffs fail to state a claim under the First Amendment’s Free Exercise Clause or the RFRA.
2. Establishment Clause (Count II) Next, Plaintiffs say that ht e policy, custom and practiceimplemented by Defendants amounts to an impermissible govenr ment entanglement with religion. Plaintiffs’ allegations in the first amended complaint fall short of stating an Establishment Clause claim. The Establishment Clause of the FirstAmendment states, “Congress shall make no law respecting an establishment of religi on.” U.S. Const. amend. I, cl. 1. “The Establishment Clause, unlike the Free Exercise Clause, does not depend on any showing of direct governmental compusl ion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not.” Engel v. Vitale, 370 U.S. 421, 430 (1962). In the context of statutes, the Supreme Court has required proof of three elements to uphold their constitutionality: “First, the statute must have a secular legislative purposes; econd, its principal orprimary effect must be one that neither advances nor inhibits religi on; finally, the statute must not foster ‘an excessive government entanglement with religion.’” 403 U.S.at 612–13 (internal citations omitted). Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the first prong of Lemon, the “purpose prong,” the Government’s purpose must be secular, “and not merely secondary to a religious objective.” ACLU of Ohio
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Found., Inc. v. DeWeese, 633 F.3d 424, 431 (6th Cir. 2011) (ictation and internal quotation

mark omitted). Here, Plaint iffs do not claim that Defendants’ actions at the border were

undertaken in pursuit of a religious objective. Rtaher, the crux of Plaintiffs’ complaint is that

they are being profiled and subjected to re ligious questioning becau se of a claimed

association between their Islamic beliefs and terrorist activities. Plaintiffs, however, have

not sufficiently alleged that Defendants had a religious objective.

The second prong, the “endorsement test,” “asks whether the [G]overnment action

has the purpose or effect of endorsing religion.” DeWeese, 633 F.3d at 431 (citation

omitted). As explained by the Sixth Cir

cuit, “[u]nder the endorsement test, the

[G]overnment violates the Esat blishment Clause when it actsin a manner that a reasonable

person would view as an endor sement of religion.” Id. at 434 (quoting ACLU of Ky. v.

Mercer Cnty., Ky., 432 F.3d 624, 636 (6th Cir. 2005)). “This is an objective standard,” and

the “inquiry here is whether the reasonabl e person would c onclude that” Defendants’

actions at the border “have the effect of endorsing religion.” Id. (quoting Mercer, 432 F.3d

at 636). A reasonable person would not draw such a conclusion. What ever r eason

Defendants have for questioning Plaintiffs abouthteir religious practices and beliefs, it does

not have the effect of endorsing religion. It has the effect of burdening Plaintiffs’ ability to

cross the border in a timely fashion.

The finalLemon prong, the “entanglement prong,”asks “[whether] the [Government]

action fosters an excessive entanglement with religion.” Id. at 431 ( internal quotation

marks omitted). Plaintiffs have not alleged in their first amended complaint facts which

establish that Defendants’ actions amount toan excessive entanglement with religion. All

Plaintiffs have pled is that ht ey were treated differently basedon their religious beliefs. The

26

2:12-cv-11656-AC-LJM Doc # 44 Filed 06/11/13 Pg 27 of 34 Pg ID 412
allegations in the first amended complaint do not state a claim under the Establishment Clause and are better suited for Plaintiffs’ Fifth Amendment claim.
3. First Amendment Retaliation (Count III) In Count III of the first amended complaint, Pl aintiffs say that they were retaliated against for “choosing to exercise their religion.”Specifically, Plaintiffs say that Defendants’ “actions have deprived and continue to deprive Plaintiff[s] First Amendment rights to free exercise of religion and to be free from r eligious discrimination in violation of the Free Exercise Clause and Establishment Clause.” (Doc. 21 at 16, Pls’. First Am. Compl.). As explained above, however, Plaintiffs fail to state a claim under t he F ree Exercise or Establishment Clauses of the Frist Amendment. Plaintiffs’ retaliation claim, therefore, fails to state a claim upon which relief can be granted. “It is well established that government actions, which standing alone do not violate the Constitution, may nonetheless be constitutionaltorts if motivatedin substantial part by a desire to punish an individual f or exer cise of a constitutional right.” Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999). To establish a First Am endment retaliation claim, plaintiffs must show: (1) they were “participating in a constitutionally protected activity”; (2) the defendants’ actions “injured the plaintiff[s] in a way likely to deter a person of ordinary firmness from further participation in that activity”; and (3) “the adverse action was motivated at least in part by t he plaintiff[s]’ protected conduct.” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 371 (6th Cir. 2011) (caittions omitted). Once the plaintiffs “raise the inference that the def endant[s]’ conduct was motivated in part by the plaintiff[s]’ pr otected activity, the burden sh ifts to the defendant[s] to ‘demonstrate that [they] would have taken the same action in the absence of the protected activity.” Id. at
27

2:12-cv-11656-AC-LJM Doc # 44 Filed 06/11/13 Pg 28 of 34 Pg ID 413
371–72 (citation omitted). Assuming without dec iding that Plaintiffs were participating in a constitutionally
protected activity and that Defendants’ conduct was motivated byPlaintiffs’ exercising such activity, Plaintiffs have not established that t hey were injured in a way “likely to deter a person of ordinary firmness from further partici pation in t hat activity.” Indeed, Plaintiffs themselves have not alleged that they no longerparticipate in Islamic practices and beliefs because of Defendants’ actions. That Plaintiffs do not cross the border anymore so that they can avoid religious questioning is not the equivalent of ceasing their participation in the tenets of their religion. Accordingly, Plainiftfs fail to state a claim of retaliation under the First Amendment.
4. Fifth Amendment Equal Protection (Count IV) In Count IV of the amended complaint, Plani tiffs claim that Defendants violated the Fifth Amendment’s equal protection guarantee encompassed in the Due Process Clause. The Fifth Amendment contains the conceptof equal protection under the laws.See Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (“But the ocncepts of equal protection and due process, both stemming from ourAmerican ideal of fairness,are not mutually exclusive.”). Indeed, “ if the federal government acts in a manner that would vi olate the Fourteenth Amendments’ Equal Protection Clause, such action will be deemed a violation o f t he ‘implied equal protection guarantee’ of t he F ifth Amendment’s due process clause.” Olympic Arms v. Magaw, 91 F. Supp. 2d 1061, 1069 (E.D. Mich. 2000). Under the Equal Protection Clause of the Fourteenth Amendment, “No State shall make or enforce any law which . . . den[ies] to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend XIV, § 1. As the Si xth Circuit has recently
28

2:12-cv-11656-AC-LJM Doc # 44 Filed 06/11/13 Pg 29 of 34 Pg ID 414
explained, “[t]o state an equal protection claim, a plaintiff must adequately plead that the government treated the plaintiff‘disparately as compared to smi ilarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis.’” Ctr. for Bio-Ethical Reform , Inc., 648 F.3d at 379 (citing Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, Mich., 470 F.3d 286, 299 (6th Cir. 2006)).
In their Fifth Amendment claim, Plaintiffsspecifically allegethat “Defendants’ abovedescribed actions, policies, course of conduct, orpattern of practicethat mandate or permit the above-described treatmenthave had a discriminatory effect upon and have disparately impacted Muslim American travelers, and not travelers of other faiths.” Indeed, central to Plaintiffs’ first amended complaint is that the policy, custom and practice is only applied against Muslims, and not travelers of other faiths.
Plaintiffs have adequately pled that Defendants have a policy, custom and practice of questioning only Muslim-American’s at the border about their religious practices and beliefs. Moreover, Plaintiffs have sufficientlyalleged that such policy, practice and custom targets a suspect class and has no rational basis . At this stage in the case, Plaintiffs’ allegations are sufficient. The Fifth Amendment claim, therefore, will not be dismissed.
V. CONCLUSION A. Summary
For the reasons stated above, Def endants’ motion to dismiss was granted in part and denied in part. Plaintiffs have standing, theCourt has subject matter jurisdiction, and Plaintiffs have sufficiently pled the existence of an of ficial policy, custom and practice. Nevertheless, Plaintiffs failto state a claim upon which relief can be granted under the First
29

2:12-cv-11656-AC-LJM Doc # 44 Filed 06/11/13 Pg 30 of 34 Pg ID 415
Amendment and the RFRA. Accordingly, Counst I, II, III, and V were dismissed. The only remaining count in Plaintiffs’ first amended complaint against Defendants is Count IV (Fifth Amendment).
It may well be the case thatDefendants will come forward with a permissible reason for profiling Plaintiffs for secondary inspetcion and questioning them extensively about their religious practices and beliefs. That is not the question before the Court on Defendants’ motion to dismiss. Indeed, at thisstage, the Court must take all allegations in Plaintiffs’ first amended complaint as true. The legality and propriety of Defendants’ conduct is better suited, at a minimum, for a motion for su mmary judgment after an appropriate period of discovery.
B. CODA The Court in denying the motion to dismi ss has clearly said only t hat the first amended complaint claims more than a speculatiev and hypothetical injury. What the Court has said is that the allegations cross the threshold set in the precedents for a case to go forward. In the letter of May 3, 2011 from the officer for Civil Rights and Civil Liberties of the U.S. Department of Homeland Security referencedsupra at Section II.D, the writer said
We thank you for your complaint; inquiries like yours help the Department of Homeland Securitymeet its obligation to protect civil rights and civil liberties. You can expect to receive a letter from us informing you how we have concluded this matter. To date, there has been no letter informing Plani tiffs’ counsel how the complaint has been concluded. SO ORDERED.
30

2:12-cv-11656-AC-LJM Doc # 44 Filed 06/11/13 Pg 31 of 34 Pg ID 416 12-11656 Abdulrahman Cherri, et al., v. Robert S. Mueller III, et al.
S/Avern Cohn AVERN COHN UNITED STATES DISTRICT JUDGE Dated: June 11, 2013 I hereby certify that a copy of the foregoingdocument was mailed to the attorneys of record on this date, June 11, 2013, by electronic and/or ordinary mail. S/Sakne Chami Case Manager, (313) 234-5160
31

2:12-cv-11656-AC-LJM Doc # 44 Filed 06/11/13 Pg 32 of 34 Pg ID 417
EXHIBIT A

2:12-cv-11656-AC-LJM Doc # 44 Filed 06/11/13 Pg 33 of 34 Pg ID 418

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ABDULRAHMAN CHERRI,

)

WISSAM CHARAFEDDINE,

)

ALI SULEIMAN ALI, and,

)

KHEIREDDINE BOUZID,

)

Case No. 12‐cv‐11656

)

Hon. Avern Cohn

Plaintiffs,

)

Magistrate: Laurie J. Michaelson

)

v.

)

)

ROBERT S. MUELLER, III, in his official

)

capacity as Director of the Federal Bureau

)

of Investigation;

)

)

DAVID V. AGUILAR, in his official capacity

)

as Acting Commissioner of the United States )

Customs and Border Protection;

)

)

JANET NAPOLITANO, in her official capacity )

as Secretary of the United States Department )

of Homeland Security;

)

)

ROBERT B. THOMPSON, in his individual )

capacity;

)

)

JEFF SOKOLOWSKI, in his individual

)

capacity;

)

)

UNIDENTIFIED FBI AGENTS, in their

)

individual capacities;

)

)

UNIDENTIFIED CBP AGENTS, in their

)

individual capacities; and,

)

)

Defendants.

)

_______________________________________________________________________________________________________/

[PROPOSED] ORDER GRANTING PERMANENT INJUNCTION AND DECLARATORY RELIEF

Based upon the pleadings, m otions, and eviden ce received by the Court, and the Court

being hereby otherwise fully advised in the premises;
1

2:12-cv-11656-AC-LJM Doc # 44 Filed 06/11/13 Pg 34 of 34 Pg ID 419

IT IS ORDERED, as follows: 1. A perm anent injunction is he reby en tered enjo ining Def endants from m aintaining a policy, or tolerating a course of conduct, pattern, or practic e of questioning Plaintiffs and other Muslim s about their specific Islam ic beliefs and/or practices. W hile this injunction bars Defendants from as king ques tions about the specific beliefs and/or practices of Muslims pursuant to a policy or a known and tolerated course of conduct, pattern or practice, this Order does not prohibit Defendants from asking questions pursuant to their law enf orcement author ity that in cidentally elicits respon ses revealing a person’s religious beliefs and/ or practices (i.e. where are you com ing from?); so long as such questions are not asked pursuant to a policy, or a known and tolerated course of conduct, pattern or prac tice that applies or targets only Muslims alone. 2. Defendants shall, within thir ty (30 ) days of the date of this ord er, elim inate all existing policies or procedures that encourag e, permit or tolerate a course of conduct or pattern of practice under which Custom s and Border Protection (CBP) agents and Federal Bureau of Investigation (FBI) agen ts question Muslim s, whether at ports of entry or otherwise, about their specific Islamic beliefs and/or practices.

IT IS SO ORDERED.

Hon. Dated:

_________________________ ________________________

2

 
 2:12-cv-11656-AC-LJM Doc # 45 Filed 06/11/13 Pg 1 of 2 Pg ID 420

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ABDULRAHMAN CHERRI, et al., Plaintiffs,
vs. ROBERT S. MUELLER III, et al.,
Defendants. _____________________________/

Case No. 12-11656 HON. AVERN COHN

ORDER OF BIFURCATION This case involves a challenge to what planitiffs say is a Government policy, custom and practice of questioning Muslim-American’s as they enter the United States regarding their religious beliefs and practices in violat ion of their First and Fifth Amendment rights. There are two sets of defendants: a. The Official-Capacity Defendants:
1. Robert S. Mueller, the Director of the FBI; 2. David V. Aguilar, Deputy Commissioner and Acting Commissioner of
the CBP; and 3. Janet Napolitano, Secretary of the DHS. b. The Individual-Capacity Defendants: 1. Robert B. Thompson, an agent employed by the FBI; 2. Jeff Sokolowski, an agent employed by the FBI; and 3. Unidentified FBI and CBP agents. For the reasons stated on therecord at a hearing on May 29, 2013, pursuant to Fed.

2:12-cv-11656-AC-LJM Doc # 45 Filed 06/11/13 Pg 2 of 2 Pg ID 421
R. Civ. P. 42(b), the claims against t he Official-Capacity Defendants are BIFURCATED from the claims against the Individual-Capacity Defendants. Plaintiffs shall promptly file a second amended complaint relating to the clami s against the Official-Capacity Defendants captioned “Second Amended Complaint (Offici al-Capacity Defendants)” and a second amended complaint against the Individual -Capacity Defendants c aptioned “Second Amended Complaint (Individual-Capacity Def endants).” F urther pleadings and papers relating to the separate set of defendants shall be so captioned.
SO ORDERED.
s/Avern Cohn AVERN COHN UNITED STATES DISTRICT JUDGE Dated: June 11, 2013 I hereby certify that a copy ofthe foregoing document was maiel d to the attorneys of record on this date, June 11, 2013, by electronic and/or ordinary mail. s/Sakne Chami Case Manager, (313) 234-5160
2

 
 2:12-cv-11656-AC-LJM Doc # 46 Filed 06/17/13 Pg 1 of 16 Pg ID 422

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2:12-cv-11656-AC-LJM Doc # 46 Filed 06/17/13 Pg 2 of 16 Pg ID 423
Parties ͳǤ  ǡǡǤ ʹǤ  ǡǡǤ ͵Ǥ              ǡǡǤ ͶǤ  ǡǡǤ ͷǤ Ǥ  ȋǲ ǳȌǤǡǤ ͸Ǥ Ǥ ȋǲǳȌǤ ǡǤ ͹Ǥ           ȋǲǳȌǤǡǤ
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2:12-cv-11656-AC-LJM Doc # 46 Filed 06/17/13 Pg 3 of 16 Pg ID 424
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FactualBackground AbdulrahmanCherri ͳʹǤ ǡʹͲͳͲǡȋǲǳȌ ǦǤ ͳ͵Ǥ      ǡ                     Ǥ ͳͶǤ ǡʹͲͳͲǡǦ ǡǡ     ǡ ǡ    ǡ   Ǥ ͳͷǤ       Ǧ ǡ    Ȁ        
3 

2:12-cv-11656-AC-LJM Doc # 46 Filed 06/17/13 Pg 4 of 16 Pg ID 425
ǡǡ Ǥ
ͳ͸Ǥ           Ȁ  ǦǡʹͲͳͲǤ
ͳ͹Ǥ    ǡ ʹͲͳͳǡ   ǡ    ǡǤ  ȂǤ
ͳͺǤ           ǡ  Ǥ
ͳͻǤ         Ȁ  Ȃǡǡǡ ǡǡǡ ǡǤ
ʹͲǤ            Ȁ  ǦǤ
4 

2:12-cv-11656-AC-LJM Doc # 46 Filed 06/17/13 Pg 5 of 16 Pg ID 426
ʹͳǤ       ǡ  ǡ  ǡ Ȁ  Ǥ
ʹʹǤ Ȃ Ǥ
WissamCharafeddine ʹ͵Ǥ ǡʹͲͲͺǡȋǲǳȌ ǦǤ ʹͶǤ   ǡ ǯ        Ǥ       ǡ       ǡ           Ǥ ʹͷǤ     ǡ ʹͲͲͺǡ     Ǧ ǡǡʹͲͳͲǤ ʹ͸Ǥ Ǧǡ       Ǥ      ǡǡǡ Ǥ ʹ͹Ǥ        Ǧ ǡ           Ȁ    Ǥ
5 

2:12-cv-11656-AC-LJM Doc # 46 Filed 06/17/13 Pg 6 of 16 Pg ID 427
ʹͺǤ  Ȁ  ȂǤ
ʹͻǤ   ǯ     ǡ Ǥ
͵ͲǤ ǡȀ  Ǥ
͵ͳǤ Ȃ Ǥ
AliSuleimanAli ͵ʹǤ ȋǲǳȌǦ               Ǥ ͵͵Ǥ     Ǧ          ǡ     ǡ        ǡ       Ȁ        ǡ  ǡ     Ǥ ͵ͶǤ  Ȁ 
6 

2:12-cv-11656-AC-LJM Doc # 46 Filed 06/17/13 Pg 7 of 16 Pg ID 428
   Ǧ        ǡ ǡʹͲͳͳǤ
͵ͷǤ ǡȀ Ǥ
KheireddineBouzid ͵͸Ǥ ʹͶǡʹͲͲͺǡȋǲǳȌ ǦǤ ͵͹Ǥ ʹͶǡʹͲͲͺǡǯ        Ǥ       ǡ       ǡ       Ǥ      Ȁ    Ǥ ͵ͺǤ ʹͶǡʹͲͲͺǡǦ      ǡ     ǡ ʹͲͳͲǡ        Ǧ ǡ     ǯ ǡǡǡ  ǡ     ǡ       Ǥ ͵ͻǤ       Ǧ ǡ    Ȁ    ǡ       ǡ     ǡ  Ǥ
7 

2:12-cv-11656-AC-LJM Doc # 46 Filed 06/17/13 Pg 8 of 16 Pg ID 429
ͶͲǤ            ǦǤ
ͶͳǤ ǡȀ                Ǥ
ͶʹǤ Ȃ Ǥ
Defendants’QuestioningofReligiousPractices Ͷ͵Ǥ  Ǥ ͶͶǤ            ǡ    ǡ         Ǥ ͶͷǤ  Ǥ Ͷ͸Ǥ    ǡ           ǯ  ǡ        ǡǡ ǯ  ǡ        Ǥ Ͷ͹Ǥ    ǡ  ǡ ǡ  ǡ    ǡ       ǡ ǡ
8 

2:12-cv-11656-AC-LJM Doc # 46 Filed 06/17/13 Pg 9 of 16 Pg ID 430
         Ǧ       Ǧ         Ǥ
ͶͺǤ    ǡ  ǡ ǡ  ǡ ǡǡǡ                Ǥ
ͶͻǤ  ǡ ǡ  ǡ    ǡǡǡ  ǡ  ǡǡǣ
Ǥ ǫ Ǥ ǫ Ǥ ǫ Ǥ ǫ ͷͲǤ ǡǡ ǡ  ǡ         ǡ  ǡ         Ǥ ͷͳǤ   ͳǡ ʹͲͳͲǡ            ǡǡǤǡ
9 

2:12-cv-11656-AC-LJM Doc # 46 Filed 06/17/13 Pg 10 of 16 Pg ID 431
  ǡ  ȋǲ ǳȌ         ȋ ǲ ǳȌǤ            Ǥ
ͷʹǤ ǡ ǯȀ             ǡǡ       Ȁ      Ǧ  Ǧ Ǥ
ͷ͵Ǥ   ʹͶǡ ʹͲͳͳǡ    Ǧ ǡ  ȋǲǦǳȌ                         Ȁ Ǥ
ͷͶǤ      ͵ǡ ʹͲͳͳ         ʹͶǡʹͲͳͳǡǤǡǡǲ͸ǤǤǤȚ͵Ͷͷ Ͷʹ ǤǤǤ Ț ʹͲͲͲǦͳǡ              Ǥ  ǡ                     ǳ ȋ ǲ  ǳȌǤǤ
ͷͷǤ ǡǤ           
10 

2:12-cv-11656-AC-LJM Doc # 46 Filed 06/17/13 Pg 11 of 16 Pg ID 432
             ǣǲȏȐǡǤǤ     ȋȌ       Ǥǳ
ͷ͸Ǥ   ͵ǡ ʹͲͳͳǡ             Ǥ ǡ     ǯ        Ǧ                 ȋǲǳȌǤ Ǥ
ͷ͹Ǥ           ǲ ȏȐ ȏ Ȑ          ǡ Ǥǳ
ͷͺǤ    ǣȋͳȌͳ͹ǡ ʹͲͲͻǡ            ǡ ǲǢǳȋʹȌʹͲͲͻǡ ǲǢǳȋ͵Ȍ
ʹͳǡʹͲͳͲǡǲǫ    ǫ     ǫ  ǲ     
11 

2:12-cv-11656-AC-LJM Doc # 46 Filed 06/17/13 Pg 12 of 16 Pg ID 433
ǫǳ ȋͶȌ   ͸ǡ ʹͲͲͻǡ  ǡ  ǡ     
ǲǫǫǫǫ
ǫǲǯǫǳȋͷȌǡʹͲͳͲǡǡǡ
    ǲ   ǫ  ǲ      ǡ  
ǫǳȋ͸ȌͺǡʹͲͳͲǡǡǡ 
Ȃǲǫ
ǫǯǫǳȋ͹Ȍǡǡ
 ǲ
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ǲǡǡǳǡȋͻȌ ʹ͸ǡ
ʹͲͳͲǡ          ǲ     ǯǡǳ 
Ǥ
ͷͻǤ  ǡ   ǡ    ǡ  ǡ 
ǡǡǯǡ
   ǡ    ǡ     
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COUNTI VIOLATIONOFTHEFIRSTAMENDMENT TOTHEUNITEDSTATESCONSTITUTION
(FreeExerciseofReligion)1   
 1CountIwasdismissedbytheCourtinitsJune11,2013Order.Dkt.44.Also,theCourtissuedanOrderofBifurcation requiring the filing of two second amended complaints, one to be filed as Second Amended Complaint (Official – Capacity Defendants), and the second as, Second Amended Complaint (IndividualͲCapacity Defendants) (DKT#45).ForbothOrders,Plaintiffagreesastoformonly.
12 

2:12-cv-11656-AC-LJM Doc # 46 Filed 06/17/13 Pg 13 of 16 Pg ID 434
COUNTII VIOLATIONOFTHEFIRSTAMENDMENT TOTHEUNITEDSTATESCONSTITUTION
(EstablishmentClause)2 
COUNTIII VIOLATIONOFTHEFIRSTAMENDMENT TOTHEUNITEDSTATESCONSTITUTION
(Retaliation)3 
COUNTIV VIOLATIONOFTHEFIFTHAMENDMENT TOTHEUNITEDSTATESCONSTITUTION
(EqualProtection) 
͸ͲǤ         
Ǥ
͸ͳǤ 

ǦǤ
͸ʹǤ ǯ          

 
            
Ǥ
 2 Count II was dismissed by the Court in its June 11, 2013 Order.  Dkt. 44.  Also, the Court issued an Order of Bifurcationrequiringthefilingoftwosecondamendedcomplaints,onetobefiledasSecondAmendedComplaint (Official –Capacity Defendants), and the second as, Second Amended Complaint (IndividualͲCapacity Defendants) (DKT#45).ForbothOrders,Plaintiffagreesastoformonly. 3 Count III was dismissed by the Court in its June 11, 2013 Order.  Dkt. 44.  Also, the Court issued an Order of Bifurcationrequiringthefilingoftwosecondamendedcomplaints,onetobefiledasSecondAmendedComplaint (Official –Capacity Defendants), and the second as, Second Amended Complaint (IndividualͲCapacity Defendants) (DKT#45).ForbothOrders,Plaintiffagreesastoformonly.
13 

2:12-cv-11656-AC-LJM Doc # 46 Filed 06/17/13 Pg 14 of 16 Pg ID 435
͸͵Ǥ ǯǦǡǡǡ       Ǧ                Ǥ
͸ͶǤ ǯǦǡǡǡ Ǧ ǡ Ǥ
͸ͷǤ ǯ Ǧ          ǯ    ǡ      Ǥ
͸͸Ǥ ǯ          Ǥ
͸͹Ǥ    ǯ       ǡ         Ǥ
 ǡ          ǡ ǯ Ǥ
14 

2:12-cv-11656-AC-LJM Doc # 46 Filed 06/17/13 Pg 15 of 16 Pg ID 436

COUNTV VIOLATIONOFTHERELIGIOUSFREEDOMRESTORATIONACT
(42U.S.C.§2000bb,etseq.)4

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ͳǤ ʹǤ
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2:12-cv-11656-AC-LJM Doc # 46-1 Filed 06/17/13 Pg 1 of 6 Pg ID 438 FOR OFFICIAL USE ONLY

October 1, 2010 MEMORANDUM ,41vb

Homeland Security

MEMORANDUM FOR: Margo Schlanger, Officer for Civil Rights and Civil Liberties

FROM:

Senior A visor, Office for Civil Rights and Civil Liberties

SUBJECT:

Law enforcement questioning regarding religion

You asked me to examine case law regarding the permissible bounds of law-enforcement questioning of individuals regarding their religion, both at the border and within the United States. The query would encompass border inspections as well as consensual and custodial police interrogation, and law on religious profiling would also be relevant. But there is much less law in this area than one would expect. So, notwithstanding the fact that religious questioning and religious profiling implicate First Amendment considerations that questioning or profiling on ethnicity or race do not, there is relatively little to say, other than that courts presume the same limitations on religion-based police activity as on race-cognizant policing.
At the Border

Unlike race, ethnicity, and specific national origin, U.S. immigration laws do not, and historically have not, called for border personnel to track religious identity or practices. There are two, limited exceptions applicable when persons seek an immigration or customs benefit by virtue of religion: special immigration rules for religious workers, and special customs rules for controlled substances used in religious ceremonies. While one Court of Appeals judge recently suggested that First Amendment rights at the border may attenuate along with Fourth Amendment ones, no court has so held, and there is some law to the contrary.

Acquisition of Religion Information at the Border

For most of the early history of the United States, arriving aliens were not inspected at all, and there were essentially no grounds for exclusion. See generally Richard D. Steel, Steel on Immigration Law § 1:1 (2d ed. supp. 2010). The first statutory requirement that data be collected on all aliens seeking admission called for recordation of sex, race, marital status, occupation,
literacy, and nationality, but not religion. Act of March 3, 1903, ch. 1012, § 12, 32 Stat. 1213,
1216. When Congress added a limited literacy test for admission in 1917, it curiously styled the requirement as an exclusion of lain aliens over sixteen years of age, physically capable of
reading, who can not read the English language, or some other language or dialect, including Hebrew or Yiddish[.]" Pub. L. No. 64-301, § 3, 39 Stat. at 877 (emphasis added).

The early immigration laws also prohibited, in varying terms, entry by polygamists or those promoting polygamy. No distinction was drawn between religious and secular advocates of

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polygamy. See, e.g., Pub. L. No. 64-301, § 3, 39 Stat. at 875 (excluding "polygamists, or persons who practice polygamy or believe in or advocate the practice of polygamy").
The Immigration and Naturalization Act of 1952 and its multiple amendments have not sought religious information or used religion as grounds for exclusion, apart from the special rules for certain ministers and religious workers, discussed below. Religious persecution has, of course, been incorporated as possible grounds for refugee status. 8 U.S.C. § 1101(a)(42). Aliens attempting to establish refugee status at the time of admission may, accordingly, face questioning about religion by an asylum officer.
Ministers and other religious workers
When Congress began to create grounds for exclusion in the late 19th century, a general exception from the ban on contract labor was made for "ministers of any religious denomination," among other skilled professionals, Act of March 3, 1891, ch. 551, § 5, 26 Stat. 1084, 1085, an exception that may be constitutionally compelled. See Holy Trinity Church v. United States, 143 U.S. 457 (1892). Later law expanded the ministerial exception to "ministers or religious teachers." Pub. L. No. 64-301, § 3, 39 Stat. 874, 876 (1917). Those rules have been expanded, contracted, and refined over time, such that several advantages are available to noncitizen ministers and religious workers relative to other aliens. See 8 U.S.C. § 1101(a)(15)(R) & (a)(27)(C); § 1324(a)(1)(C); § 1428 (2010). None of these provisions differentiate among religious denominations.1
Passenger Name Record information
CBP could potentially come into possession of religion information through the automated acquisition of passenger name record (PNR) data from airlines. Some airline PNR systems contain special meal requests, which would at least suggest, for some individuals, a religious affiliation. It appears, however, that CBP's use, at least of PNR information obtained from European airlines, is scrubbed of all religion information before being ingested into the CBP database; that meal data fields are not ingested; and that free-text fields, while partially ingested, would not routinely convey meal information to the CBP system. See Undertakings of the Department of Homeland Security Bureau of Customs and Border Protection Regarding the Handling of Passenger Name Record Data, 69 Fed. Reg. 41,543 (July 9, 2004), superseded in part by Agreement Between the United States of America and the European Union on the Processing and Transfer of Passenger Name Record (PNR) Data by Air Carriers to the United States Department of Homeland Security (DHS) (July 26, 2007), available at www.dhs.gov/xlibrary/assets/pnr-2007agreement-usversion.pdf.
1 It is not immediately clear what immigration officials have historically accepted as proof that an entrant presenting for inspection is a religious worker. Current law indicates the alien holds the burden .of proof "to the satisfaction of the Attorney General" in this area. See, e.g., 8 U.S.C. § 1428 (allowing certain immigrant religious workers temporary absence from the United States, but requiring, upon return, "pro[of] to the satisfaction of the Attorney General that his absence from the United States has been solely for the purpose of performing the ministerial or priestly functions of such religious denomination, or of serving as a missionary, brother, nun, or sister").

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Sacramental controlled substances
Under the Religious Freedom Restoration Act, religious organizations may be exempted from the Controlled Substances Act for importation of certain controlled substances for religious purposes. Gonzales v. 0 Centro Espirito Beneficente Unielo do Vegetal, 546 U.S. 418 (2006).2 Any similar RFRA importation claim (or perhaps immigration claim, as by a polygamist claiming a RFRA right to adjust status for more than one spouse) could require affirmative disclosure of religious information when persons or goods are brought across the border.
Case law
It is beyond the scope of this memo to consider what constitutional standards would control efforts to determine the religious affiliation or practice of aliens seeking admission. It is well established that privacy expectations are diminished at the border, and that a balance between those diminished expectations and government interests is struck at a point more favorable to the government than in most other contexts. See United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (describing the "qualitatively different" Fourth Amendment analysis that obtains at the border). It is also clear that conduct and communications that would be shielded by First Amendment, as well as Fourth Amendment, protections inside the United States may be subject to state intrusion at the border. United States v. Ramsey, 431 U.S. 606 (1977) (approving warrantless inspection of arriving international airmail). And•the Supreme Court has strongly suggested, if not precisely held, that the exclusionary rule is not applicable to immigration adjudications, apart perhaps from "egregious" constitutional violations rendering a proceeding "fundamentally unfair," INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984), which would suggest that intrusive border questioning even on sensitive or First Amendmentprotected areas is liable to be countenanced by reviewing courts. See also Reno v. AmericanArab Anti-Discrim. Comm., 525 U.S. 471 (1999) (noting high bar to selective-prosecution claim in immigration context, requiring "outrageous" improper discrimination to quash enforcement).
It is also clear that nationality and citizenship are legitimate bases for discriminations at the border. Kandamar v. Gonzales, 464 F.3d 65, 72 (1st Cir. 2006). Few contemporary claims of discrimination on the grounds of religion are, in the immigration or border context, wholly separable from discrimination concerning nationality.3 See Rajah v. Mukasey, 544 F.3d 427, 439 (2d Cir. 2008). Thus, for example, challenges to the NSEERS program — on the grounds that it amounts to singling out nationals of predominantly Muslim countries — have been uniformly rejected by courts recognizing that the basis for the program is a permissible differentiation among countries, rather than a discrimination on the basis of the religion of the nationals of those
2 0 Centro recognized that RFRA created a statutory right (against federal entities) substantially stronger than the limited First Amendment right to religious exemptions to laws of general applicability recognized by Employment Division v. Smith, 494 U.S. 872 (1990).
3 Kwai Fun Wong v. United States, 373 F.3d 952 (9th Cir. 2004), which concerned an alien minister, may be one such exception: Petitioner's claims of religious and national origin discrimination apparently concerned her race, not her country of citizenship.

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countries. Rajah v. Mukasey, 544 F.3d 427, 439 (2d Cir. 2008) (collecting cases upholding NSEERS against equal protection challenges).
The closest a court has come to considering these issues directly is Tabba v. Chertoff; 509 F.3d 89 (2d Cir. 2007), a case challenging a CBP program requiring secondary inspection of all persons (including U.S. persons) returning from an Islamic conference in Toronto. Plaintiffs argued that their inspection — which lasted four to six hours, and involved some use of force went beyond the routine searches that are allowed without individualized suspicion at the border. The Second Circuit approved the program as a routine search, permitted without individualized suspicion, in light of CBP's intelligence suggesting the presence of terrorism-related individuals at the conference in Canada.
The program applied to all persons who had attended the conference — not to all Muslims arriving from Canada, but to non-Muslims (if any) who had attended — and so was not actually a religious classification. Accordingly, the court applied the intermediate scrutiny standard applicable to associational freedom claims under Roberts v. United States Jaycees, 468 U.S. 609 (1984), rather than a strict scrutiny analysis that could have followed from a true religious classification claim. Hence while the secondary screening constituted a significant burden on the plaintiffs' associational freedom, the compelling state interest established by the intelligence about the Toronto conference outweighed that burden.
Speaking only for himself, Judge Straub suggested that something less than the Jaycees standard could be applicable in border searches and seizures: "It may also be true that the First Amendment's balance of interests is [111- the Fourth Amendment's] qualitatively different where, as here, the action being challenged is the government's attempt to exercise its broad authority to control who and what enters the country." 509 F.3d at 102 n.5.
There is at least some authority suggesting Judge Straub's suggestion is wrong, notably Boyd v. United States, 116 U.S. 616 (1886), which struck down a statute allowing certain compelled statements from importers regarding goods potentially imported in violation of the customs laws. Though not speaking to the precise point, Boyd repeatedly and sharply distinguished between the government's nearly unbounded ability to seize physical contraband, and its limited ability to seize mere documentary information related to it. While Boyd is a Fourth and Fifth Amendment case, it at least suggests that the government's power to demand disclosure of First Amendment-protected information at the border is less than its ability to inspect, detain, and seize potential physical contraband.
By and large, however, courts faced with issues of religious questioning or profiling at the border have managed to avoid a holding on the issue. Kwai Fun Wong v. United States, 373 F.3d 952, 974 n.29 (9th Cir. 2004) (avoiding determining whether aliens paroled into the United States under the "entry fiction" have non-procedural rights, as against religious profiling, akin to potential entrants at the border, or persons lawfully present); Tungawara v. United States, 400 F.Supp. 2d 1213, 1220 n.4 (N.D. Cal. 2005) (avoiding deciding whether level of suspicion required to strip-search non-admitted aliens "need be particular to the individual as opposed to, for example, a category of those traveling from a particular place").

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Within the United States
While profiling on the basis of religion is frequently mentioned as illegitimate in precisely the same manner racial profiling is, there are essentially no cases discussing religious profiling separately from racial profiling, or religious questioning as such. While there are contexts in which police might discuss religion with suspects, these are not relevant to the question when police may raise religion in interrogation for the purpose of eliciting information about it.
Religious profiling and questioning
As in the border context, current claims of religious profiling are generally combined with allegations of racial, ethnic, or nationality discrimination: Police are accused of having singled an individual out for treatment due to an appearance that suggests a predominantlyMuslim ethnicity or nationality. Hence United States v. Quintana, 585 F.3d 1407 (11th Cir. 2009), concerned a Latino man seeking suppression of his arrest by officers who initiated a consensual encounter in part because they thought he was "Middle Eastern." No court appears to have distinguished religious from racial/ethnic/national origin discrimination in these contexts, where what draws police attention is a perceived ethnic, racial, or national characteristic that allegedly connotes a religious affiliation.
There are relatively few other cases involving religious questioning, and none, so far as I can discern, attempt to set forth a comprehensive standard for when police questioning about religion is proper and when it would intrude on First Amendment (free exercise) or Fifth or Fourteenth Amendment (privacy or equal protection) interests. A rare exception is Ramie v. City of Hedwig Village, 765 F.2d 490 (5th Cir. 1985), a § 1983 action where plaintiff sought damages for harassing and abusive police questioning concerning her actual and perceived gender and "whether she believed in Jesus Christ." Reversing a judgment for the plaintiff, the Fifth Circuit suggested that police have a general right to "ask the questions they believe will aid them in the investigation," even if "in retrospect some question may be determined to be irrelevant and not within the government's proper sphere of concern," so long as the invasion of privacy does not outweigh the public purpose. Id. at 492-93.4 But it is not clear that Ramie's essentially rationalbasis balancing is the appropriate rule when religion is involved.
Related contexts
Police use of religion to extract confession
Police interrogators will, not infrequently, reference religious concepts to elicit a suspect's guilt and prompt a confession or other statement. There is clear case law that police may appeal to religion — just as they may make entirely false statements — so long as the suspect's will is not overborne by a religious interrogation that rises to the level of coercion. See,
4 A handful of cases involve state investigations of public employees' religion where the employee has been accused or suspected of improperly combining religion with state business. E.g., Vernon v. City of Los Angeles, 27 F.3d 1385 (9th Cir. 1994). That circumstance is far removed from state questioning of private persons regarding religion.

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e.g., State v. Newell, 132 P.3d 833, 844 (Ariz. 2006) (explaining and applying doctrine); People v. Adams, 143 Cal. App. 3d 970 (1983) (same). It does not appear that these appeals to religion are aimed at eliciting information about the suspect's religion. If anything, they presuppose the religious views of the subject of the questioning, in order to obtain nonreligious information. These cases are therefore not helpful.
Sacramental controlled substances
As with importation, persons apprehended for use, possession, sale, or acquisition of controlled substances intended for sacramental use may have a religious defense to arrest or prosecution. It is at least possible police would ask a suspect apprehended with, say, peyote about his religious affiliation prior to effecting an arrest. But no reported cases set forth the permissible bounds of such questioning, and in general, persons capable of making a religioususe claim seem to know their rights and to assert them affirmatively in a police encounter. One court (pre-Smith and pre-RFRA, see supra note 2) rejected the idea that prearrest adversary process is required to test an individual's immunity from prosecution for possession of controlled substances for religious purposes. Golden Eagle v. Johnson, 493 F.2d 1179 (9th Cir. 1974).

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2:12-cv-11656-AC-LJM Doc # 46-2 Filed 06/17/13 Pg 1 of 3 Pg ID 444
Office for Civil Rights and Civil Liberties U.S. Department of Homeland Security Washington, DC 20528
May 3, 2011
Lena F. Masri, Esq Staff Attorney Council on American-Islamic Relations Michigan Chapter 21700 Northwestern Highway, Suite 815 Southfield, Michigan 48075
Re: Complaint No. 11-06-CBP-0150 (Yusuf Harper) Complaint No. 11-06-CBP-0151 (Yousef Mawry) Complaint No. 11-06-CBP-0152 (Anonymous Canadian Citizen) Complaint No. 11-06-CBP-0153 (Fawzy Mohamed) Complaint No. 11-06-CBP-0154 (Wissam Charafeddine) Complaint No. 11-06-CBP-0155 (Anonymous Muslim Female) Complaint No. 11-06-CBP-0156 (Kheireddine Bouzid) Complaint No. 11-06-CBP-0157 (Sheikh Ali Sulaiman Ali) Complaint No. 11-06-CBP-0158 (Abdulrahman Cherri) Complaint No. 11-06-CBP-0159 (Anonymous Egyptian Male)
Dear Ms. Masri:
The Office for Civil Rights and Civil Liberties received information from you on March 24, 2011, concerning repeated handcuffing, brandishing of weapons, prolonged detentions, invasive and humiliating body searches at the border, and inappropriate questioning that pertains to religion and religious practices by U.S. Customs and Border Protection (CBP) personnel.
Under 6 U.S.C. § 345 and 42 U.S.C. § 2000ee-1, the Office for Civil Rights and Civil Liberties has the responsibility to review and assess complaints against Department of Homeland Security employees and officials concerning violations of civil rights, civil liberties, and profiling on the basis of race, ethnicity, or religion. CRCL has received a number of complaints like yours, alleging that U.S. Customs and Border Protection (CBP) officers have engaged in inappropriate questioning about religious affiliation and practices during border screening. We will add these complaints to the investigation we are opening on this subject. We are unable to discuss the specifics of this investigation without the express written consent of these complainants; however, once we have their consent, we will provide you with more specific details concerning this investigation.
This Office takes allegations of violations of civil rights and civil liberties very seriously. The purpose of our review is to assess if your complaint implicates issues that should be addressed by Department of Homeland Security management. Under 6 U.S.C. § 345 and 42 U.S.C. § 2000ee-
1

1, our complaint process does not provide individuals with legal or procedural rights or remedies. Accordingly, this Office is not able to obtain any legal remedies or damages on your behalf or that of the above complainants. Instead, we use complaints like yours to find and address problems in DHS policy and its implementation.
Please note that Federal law forbids retaliation or reprisal by any Federal employee against a person who makes a complaint or discloses information to this Office. 42 U.S.C. § 2000ee-1(e). If you believe that the above complainants or someone else is a victim of such a reprisal, please contact us immediately.
As we begin our review of this complaint, a representative from this Office may contact you for additional information. If you have any questions concerning this complaint, you may contact this Office by phone at 866-644-8360, 866-644-8361 (TTY), or by email at crcl@dhs.gov. When you communicate with us, please include the complaint number. In addition, it is very important to notify us of any changes in your address or telephone number or the contact information of the complainants.
The Department of Homeland Security’s Traveler Redress Inquiry Program (DHS TRIP) is a program offering a single point of contact for individuals who have inquires or seek resolution regarding difficulties they experienced during their travel screenings at airports, train stations or border crossings. You may wish to encourage the above complainants, if they have not done so already, to file a redress request with DHS TRIP online at www.dhs.gov/trip or to complete the enclosed Travel Inquiry Form and send to the following address:
DHS Traveler Redress Inquiry Program (TRIP) 601 South 12th Street, TSA-901 Arlington, Virginia 22202-4220
We thank you for your complaint; inquiries like yours help the Department of Homeland Security meet its obligation to protect civil rights and civil liberties. You can expect to receive a letter from us informing you how we have concluded this matter.
Sincerely,

Encl.

Margo Schlanger Officer for Civil Rights and Civil Liberties U.S. Department of Homeland Security

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Office for Civil Rights and Civil Liberties U.S. Department of Homeland Security Washington, DC 20528
3

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May 3, 2011

Office for Civil Rights and Civil Liberties
U.S. Department of Homeland Security
Washington, DC 20528
Homeland ibss Security
44

MEMORANDUM FOR:

Alan Bersin Commissioner U.S. Customs and Border Protection

FROM:

Alfonso Robles Chief Counsel U.S. Customs and Border Protection
Margo Schlanger Officer for Civil Rights and Civil Liberties

SUBJECT:

Audrey J. Anderson Associate General Counsel (Legal Counsel) Office of the General Counsel

Complaint No. 10-10-CBP-0137 1(b) (6) Complaint No. 11-06-CBP-0167 1(b) (6) Complaint No. 11-06-CBP-0168 I(b) (6) Complaint No. 11-06-CBP-0169 1(b) (6) Complaint No. 11 -05-CBP-0162 i(b) (6) Complaint No. 11 -06-CBP-0160 ((b) (6) Complaint No. 11 -03 -CBP-0163 i(b) (6) Complaint No. 11-06-CBP-0150 I(b) (6)
Complaint No. 11 -06-CBP-0161 I(b) (6) Complaint No. 11 -03 -CBP-0164 i(b) (6) Complaint No. 11 -06-CBP-0151 1(b) (6)
Complaint No. 11-06-CBP-0152 Anon mous (b) (6) Complaint No. 11-06-CBP-0153 ((b) (6) Complaint No. 11-06-CBP-0154 ((b) (6)

Citizen)

Complaint No. 11-06-CBP-0155 Anon mous Mus im Female) Complaint No. 11 -06-CBP-0156 1(b) (6) Complaint No. 11-06-CBP-0157 1(b) (6) Complaint No. 11-06-CBP-0158 /(b) (6) Complaint No. 11 -06-CBP-0159 /(b) (6)
Complaint No. 11 -03 -CBP-0165 ((b) (6)
Complaint No. 11 -03-CBP-0166 i(b) (6)
Complaint No. 11 -05-CBP-0136 I(b) (6)

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Complaint No. 11-05-CBP-0171 ((b) (6)

The Office for Civil Rights and Civil Liberties (CRCL) has received numerous accounts from American citizens, legal permanent residents, and visitors who are Arab and/or Muslim, alleging that officials from U.S. Customs and Border Protection (CBP) repeatedly question them and other members of their communities about their religious practices or other First Amendment protected activities, in violation of their civil rights or civil liberties, or otherwise target them for extra scrutiny, questioning, or inappropriate comment based on their ethnicity or apparent religion. The purpose of this memorandum is to notify you of the complaints and describe the allegations, inform you that CRCL will retain these complaints for investigation, and explain how CRCL will work with CBP during our investigation.

ALLEGATIONS

The complainants allege they have been questioned about their religious practices and other inappropriate topics at land and air ports of entry. Allegations were received from a variety of sources, including correspondence directed to the Department by the ACLU and Muslim Advocates; a recent story that aired on National Public Radio (NPR); individually filed complaints; and a set of complaints filed on March 31 by the Council on American-Islamic Relations Michigan (CAIR-MI). Due to the number of complaints, the allegations are organized by Field Office and port of entry.

Boston Field Office Boston Logan International Airport (BOS) CRCL's Community Engagement Section conducts outreach and engagement events in the Bostonmetro area. During that engagement, Muslim community members have expressed concerns about questions they are asked when returning to the United States. These questions include: what religion do you belong to? How religious are you? How often do you pray? Where do you pray? What mosque do you attend? and Why do you wear a beard?

1) More particularly, CRCL received a complaint from (b) (6)

a U.S. citizen, who alleges

(by his counsel, the ACLU) that since 2004, he has been sub ect to repeated delays by CBP when he

presents himself for admission at U.S. ports of entr

lives in the Boston area, and

travels frequently though Logan airport. (b) (6)

a eges t at his questioning during secondary

inspections have been highly inappropriate. He a eges he has been asked: what mos• ue he •rays at;

how often he prays; and whether any of his family members are strictly religious. (b) (6)

alleges his religion and national origin are the basis for his repeated referrals and sussequent

inappropriate questioning. In April 2010, (b) (6)

alleges that his computer, cell phone, and iPod

were taken from him for three hours• and when e arose from his seat to ask about his status an

officer elled at him to sit down. (b) (5)

2) (b) (6)

has complained via our en ta!ement meetings that he has been asked at Logan

how often e prays and what mosque he attends. (b) (6)

also alleges that during a four hour

inspection on November 17, 2009, he was denied t e use o a restroom and his electronic media

were confiscated.

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3) (b) (6)

has complained via our engagement meetings that in August 2009 he

was asked what mosque he attends and how often he prays.

4) (b) (6)

has complained via our engagement meetings that on September 5, 2009, she

was detained wit er children for four hours. She alleges that her son was asked if the number on

his basketball jersey was a reference to the Quran, that CBP did not allow her to respond to her

daughter's cries, and that she was not provided with an interpreter, even though her English

proficiency is low. (b) (6)

alleges she was asked why she purchased clothing in Egypt, why she

did not marry overseas ice other Somali women, and why she was not fasting on a particular day.

Buffalo Field Office Rainbow Bridge Port of Entry

5) A letter to the DHS Office of Inspector General from the ACLU and Muslim Advocates
since referred to CRCL) and the referenced NPR story both allege that on February 21, 2010,
was referred to a secondary inspection which lasted over four hours. During his inspection, (b) (6) alleges he was asked a series of inappropriate questions, including: When did you convert? W en • i• you become a Muslim? Which mosques do you attend? and How often do you attend the mosque?

6) According to the same NPR story, (b) (6)

presented her passport to the CBP officer in

primary earlier this year, and was subjecte• to . iscriminatory treatment based on her perceived

status as a Muslim. For example, when her traveling companion (who wore a head covering) stated

that she was in Canada to work on a stor of a notorious religiously-motivated murder of a Muslim

woman, the CBP officer asked (b) (6) if she was related to the murderer.

Service Port - Champlain

7) According to the ACLU/Muslim Advocates letter, on August 6, 2009, (b) (6)

a U.S.

citizen, arrived at the "Champlain border crossing." He was referred to secondary inspection for one

hour. During his inspection officers allegedly asked: Do you go to the mosque? Why? How often?

What mosque? Are you an Imam at the mosque? and Are you Shi'a or Sunni?

Lewiston Bridge Complex

8) In a complaint forwarded to CRCL by CAIR-MI, (b) (6)

a U.S. citizen, states that in

January 2010, after attending a conference on "Reviving t e Spirit in Islam," he was asked a series

of demographic questions. After an hour, a plain clothed officer asked him: Are you Muslim? Do

you pray five times a day, in the mosque? Are there any extremists in our mosques? and Do you

know any extremists? An hour later, two FBI agents arrived and questioned him because the

"underwear guy from Nigeria had just tried to blow up a plane." The FBI agents asked him all of the

questions listed above, as well as questioning him about his stay in Saudi Arabia and if that was

where he converted to Islam. He states he was subject to similar questions in Miami in April 2010,

however, when he was stopped at the Port Huron Port of Entry in January 2011, he was not asked

religious questions.

Miami Field Office

•Fort Lauderdale Airport (FLL)

9) According to the NPR story, (b) (6)

a professor of Middle Eastern studies at

Georgetown University, was referre• to secons ary inspection allegedly due to his "location of birth."

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While his account of his questioning is not entirely clear, (b) (6)

implies that his

American loyalty was questioned due to his perceived religion or ethnicity.

Seattle Field Office

Pacific Highway Crossing

10) According to the ACLU/ Muslim Advocates letter, on July 8, 2010, (b) (6)

a

U.S. citizen, was handcuffed when he presented himself for admission with is wife any one-year-

old daughter. An FBI agent questioned (b) (6)

during his inspection, and allegedly asked:

What mosque do you attend? How often do you attend the mosque? So you don't consider yourself

a religious person? Does anybody [at the mosque] talk about going back to the motherland? Do you

give donations? Don't you have to pay a certain amount of your money religiously? Who do you

give [charity] to? and Do you belong to any organizations?

Detroit Field Office
On March 24, 2011, CAIR-MI forwarded to CRCL a number of complaints on this topic, and alleged more generally that American Muslims crossing the U.S. (b) (6) border are subject to extensive questions about their religion and religious practices. CAIR-MI alleges that the following questions are most common: Do you pray five times a day? Which mosque do you pray at? Do you pray your morning prayer at the mosque? Who is the Imam at your mosque? Who else prays at your mosque? Which Muslim charities have you donated to? Which Muslim countries have you traveled to? During your travels to these countries, have you been approached by anyone suspicious? What do you think of Anwar al-Awlaki? Which Muslim organizations are you affiliated with? Are you affiliated with any terrorist organizations? Do you know any terrorists? and Are there terrorists in our mosques? The complaints connected to the Detroit Field Office listed below were all forwarded to us by CAIR-MI.

Unknown POE

11)(b) (6)

and a traveling companion, (b) (6)

allege that they were surrounded by

officers wit rawn guns after .resenting their passports. After being handcuffed and taken to the

secondary inspection area, (b) (6)

was asked, inter alia whether id he attended Islamic schools,

and what he thinks about Anwar Al Awlaki.

Ambassador Bridge Passen:er Facility 12) An anonymous (b) (6) citizen of Somali origin alleges that on May 25, 2010, she was
subjected to an intensive an* umiliating personal search by a female officer, because of her national origin. She alleges the only question CBP asked her was where she was headed. Several Somalis mentioned that they heard CBP Officers in the booths ask each other "are we still pulling over the Somalis?"

13)(0) (6)

a U.S. citizen, states that he is a truck driver who crossed the border

frequent y wit a "FAST Express Card." (b) (6)

alleges that repeated referrals to secondary

inspection based on his ethnicity while he was . riving is commercial vehicle forced him to drive

less lucrative routes. He has filed a redress request with DHS TRIP (Redress number 2104553).

14)(b) (6)

a U.S. citizen, alleges that he has been subjected to repeated intensive

inspections at the or. er. He is repeatedly taken to the secondary inspection area in handcuffs,

where he has stayed for hours, unable to place a phone call or use the restroom in private. He alleges

that he has been asked many times about, "relations, relatives, work, . . . associations, organization

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memberships, and other questions." (b) (6)

states that he has filed multi le DHS TRIP

requests, but continues to be referre• for a. • itiona inspection. Again, (b) (6)

alleges that

it is his ethnicity that is provoking extra scrutiny.

Detroit-Windsor Tunnel
15) An "Anonymous Muslim female of Somali origin," of unknown citizenship, alleges that during border screening, after she was processed through US-VISIT, she was subjected to an intensive personal search that was "rough" and "humiliating." She alleges that the CBP Officer asked her to remove her hijab, but she refused.

Detroit Metro solitan Airport (DTW)

16)(b) (6)

a U.S. citizen, alleges that when he presented himself for admission on

July 17, 2010, he was as ce : What mosques he attended; if he was involved in any Islamic

organizations; if he knew any terrorists or people involved in terrorism; the names and birthdates for

a number of his family members, both those who live in the United States and overseas. He believes

officers "googled" his name and asked him if he was involved in organizing a mosque-cleaning

project several years ago. (b) (6)

states his questioning was four or five hours in duration, only

ending when he fell asleep in is c

17)(3) (6)

states that he always has difficulties upon returnin: to the U.S., but

that it is worst at t e Detroit Metropolitan Airport. Questions include: which (b) (6) he is an imam

at; what kinds of duties he performs; his roles in the Islamic organizations he a i sates with; how

much money he brought to his community. In July 2010, he missed a connecting flight as a result of

a four hour inspection.

Port Huron Port o Entr

18)(b) (6)

citizenship unknown, states that he been stopped repeatedly by CBP,

and eac inspection is of increasing duration. At one such stop, an FBI agent allegedly asked about

his place of worship and how many times he attended per week; his address in Lebanon; who he sees

in Lebanon; whether he is affiliated with any terrorist organizations in Lebanon; and if his relatives

have criminal records. In January 2011, he was met at the aircraft door by CBP at JFK and asked

about his trip to Kuwait.

19)(b) (6)

alleges that he has been "racially profiled, mocked, harassed, and

threatenee • y o icers at t e order crossing and was searched, handcuffed, put into a room to stand

while handcuffed and interrogated, all of which took 2 hours and twenty five minutes." A CBP

officer, upon recognizing the complainant asked, "Is this conference you went to just a 'religious'

thing?"

Atlanta Field Office

Atlanta Hartsfield/Jackson International Airport (ATL)

20) Included in the ACLU/Muslim Advocates letter is a complaint about

a U.S.

citizen, who alleges that he has been questioned by CBP about protected belie s, • actices an

associations on a number of occasions. Most recently, in early August 2009, (b) (6) was

questioned by CBP for three hours about his involvement with a Muslim stile ent association.

New York Field Office John F. Kennedy International Airport (JFK)

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21) The same ACLU/Muslim Advocates letter alleges that on August 18, 2010, U.S. citizen, was asked about holy sites he visited on his trip abroad and also asked t e fo owing questions: Do you visit any Islamist extremist websites? Are you part of any Islamic tribes? Have you ever been to a madrassa or studied Islam full-time? and Do you attend a particular mosque?

22) In a complaint sent to CRCL by the CBP INFO Center,

was referred to

secondary inspection and asked the origin of his last name. He fee s that is extensive questioning

was discriminatory based on his ethnicity.

Uns i ect ted 0 ices

23)03) (6)

recently wrote the Deputy Secretary, by counsel, to complain that he was on

February 26, 2010 su jected to questioning about whether he was Sunni or Shi'ite, and told that he

should expect to face similar questioning again. The letter was forwarded to CRCL for response.

In short, CRCL has received numerous complaints on this topic, with certain obvious commonalities among them. We should note that we have every expectation that at least some of the complainants are the subject of look-outs or watchlisting. Our investigation will be sensitive to the security needs served by border questioning of such individuals.

CRCL
CRCL Mission. CRCL supports the Department's mission to secure the Nation while preserving individual liberty, fairness, and equality under the law. CRCL integrates civil rights and civil liberties into all the Department's activities:
• Promoting respect for civil rights and civil liberties in policy creation and implementation by advising Department leadership and personnel, and state and local partners;
• Communicating with individuals and communities whose civil rights and civil liberties may be affected by Department activities, informing them about policies and avenues of redress, and promoting appropriate attention within the Department to their experiences and concerns;
• Investigating and resolving civil rights and civil liberties complaints filed by the public regarding Department policies or activities, or actions taken by Department personnel;
• Leading the Department's equal employment opportunity programs and promoting workforce diversity and merit system principles.

CRCL authorities. Under 6 U.S.C. § 345 and 42 U.S.C. § 2000ee-1, CRCL is charged with investigating and assessing complaints against DHS employees and officials of abuses of civil rights, civil liberties, and profiling on the basis of race, ethnicity, or religion. The procedures for our investigations and the recommendations they may generate are outlined in DHS Management Directive 3500.

Access to information. More particularly, 42 U.S.C. § 2000ee-1(d) grants this Office access to the "information, material, and resources necessary to fulfill the functions" of the office, including the complaint investigation function; Management Directive 3500 further authorizes CRCL to:

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• "Notify[] the relevant DHS component(s) involved of the matter and its acceptance by CRCL, and whether the matter will be handled by CRCL or by the component organization";
• "Interview[] persons and obtain[] other information deemed by CRCL to be relevant and require[] cooperation by all agency employees"; and
• "Access[] documents and files that may have information deemed by CRCL to be relevant."
Reprisals forbidden. In addition, 42 U.S.C. § 2000ee-1(e) forbids any Federal employee to subject a complainant or witness to any "action constituting a reprisal, or threat of reprisal, for making a complaint or for disclosing information to" CRCL in the course of this investigation. This memorandum and its accompanying request for information are pursuant to these authorities. Privilege and required transparency. Our communications with CBP personnel and documents generated during this review, particularly the final report, will be protected to the maximum extent possible by attorney-client and deliberative process privileges. Under 6 U.S.C. § 345(b), however, we submit an annual report to Congress—also posted on CRCL's Web site—that is required to detail "any allegations of [civil rights] abuses . . . and any actions taken by the Department in response to such allegations." We look forward to working with your staff on this matter and will report back to you our findings and any recommendations. SCOPE OF REVIEW
(b) (5)
QUESTIONS PRESENTED This investigation will cover the following issues:
(b) (5)

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It is possible that our investigation will reveal other matters of concern; if this occurs, we will inform you.

INITIATING THE INVESTIGATION

We request an initial discussion with your agency about this complaint and our plans for reviewing

the matter. (b) (6)

will be staffing this review, and I will remain closely involved. As

you and your staff are aware, I have already conducted three meetings on these and related questions

(though not examining particular cases), at airport ports of entry in Detroit, Boston, and Washington

Dulles. I am also due to meet soon with staff from the CBP's National Targeting Center and CBP's

Office of Intelligence and Operations Coordination on this as well as related topics.

Given the reach and number of these complaints and the sensitivity of this matter, it seems most

appropriate to open this investigation with an "entrance meeting," involving appropriate CBP and

CRCL personnel. For CRCL, the participants will include at least myself, Jeff Blumberg (the

Director of CRCL's Compliance Branch), (b) (6)

and OGC Counsel. I imagine both OR)

CBP Counsel, and your front office may wis to atten . Please have someone inform (b) (6)

who at CBP should be included.

We look forward to working together to determine all the facts surrounding this matter and if

appropriate, the best way forward. If ou have any questions, 'lease do not hesitate to contact me;

your staff can also reach out to (1)) (6) email at

by phone at (b) (6)

866-644-8361 (TTY) or by

Copies to:

Thomas S. Winkowski Assistant Commissioner Office of Field Operations U.S. Customs and Border Protection
(b) (6)

Joint Inta e Center U.S. Customs and Border Protection
(b) (6)

(b) (6)
Executive Director Office of Diversity and Civil Rights U.S. Customs and Border Protection
(b) (6)

Andrew Farrelly (A)Chief of Staff Office of Field 0 s erations

Nena Morgan
Director, Human Capital Division
Office of Field 0 • erations
(b) (6)

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2:12-cv-11656-AC-LJM Doc # 47 Filed 06/17/13 Pg 2 of 16 Pg ID 456
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JurisdictionandVenue ͺǤ  ǤǤ Ǥ Ǥ  Țʹǡ        Ǥ ʹͺǤǤǤȚͳ͵͵ͳǡBivensv.SixUnknownNamedAgentsofFederalBureau ofNarcoticsǡͶͲ͵ǤǤ͵ͺͺȋͳͻ͹ͳȌǡ ǡͶʹǤǤǤȚʹͲͲͲǡet seq.ǡǤ
2 

2:12-cv-11656-AC-LJM Doc # 47 Filed 06/17/13 Pg 3 of 16 Pg ID 457
ͻǤ  ǡ ʹͺ ǤǤǤ Ț Ț ʹʹͲͳǦͲʹǡ  ͷ͹  ͸ͷ       ǡ  ǡǡǤ
ͳͲǤ  Ǥ
ͳͳǤ     Ͷʹ ǤǤǤ Ț ͳ͵ͻͳȋȌ                                    Ǥ
FactualBackground AbdulrahmanCherri ͳʹǤ ǡʹͲͳͲǡȋǲǳȌ ǦǤ ͳ͵Ǥ      ǡ                     Ǥ ͳͶǤ ǡʹͲͳͲǡǦ ǡǡ     ǡ ǡ    ǡ   Ǥ ͳͷǤ       Ǧ ǡ    Ȁ        
3 

2:12-cv-11656-AC-LJM Doc # 47 Filed 06/17/13 Pg 4 of 16 Pg ID 458
ǡǡ Ǥ
ͳ͸Ǥ           Ȁ  ǦǡʹͲͳͲǤ
ͳ͹Ǥ    ǡ ʹͲͳͳǡ   ǡ    ǡǤ  ȂǤ
ͳͺǤ           ǡ  Ǥ
ͳͻǤ         Ȁ  Ȃǡǡǡ ǡǡǡ ǡǤ
ʹͲǤ            Ȁ  ǦǤ
4 

2:12-cv-11656-AC-LJM Doc # 47 Filed 06/17/13 Pg 5 of 16 Pg ID 459
ʹͳǤ       ǡ  ǡ  ǡ Ȁ  Ǥ
ʹʹǤ Ȃ Ǥ
WissamCharafeddine ʹ͵Ǥ ǡʹͲͲͺǡȋǲǳȌ ǦǤ ʹͶǤ   ǡ ǯ        Ǥ       ǡ       ǡ           Ǥ ʹͷǤ     ǡ ʹͲͲͺǡ     Ǧ ǡǡʹͲͳͲǤ ʹ͸Ǥ Ǧǡ       Ǥ      ǡǡǡ Ǥ ʹ͹Ǥ        Ǧ ǡ           Ȁ    Ǥ
5 

2:12-cv-11656-AC-LJM Doc # 47 Filed 06/17/13 Pg 6 of 16 Pg ID 460
ʹͺǤ  Ȁ  ȂǤ
ʹͻǤ   ǯ     ǡ Ǥ
͵ͲǤ ǡȀ  Ǥ
͵ͳǤ Ȃ Ǥ
AliSuleimanAli ͵ʹǤ ȋǲǳȌǦ               Ǥ ͵͵Ǥ     Ǧ          ǡ     ǡ        ǡ       Ȁ        ǡ  ǡ     Ǥ ͵ͶǤ  Ȁ 
6 

2:12-cv-11656-AC-LJM Doc # 47 Filed 06/17/13 Pg 7 of 16 Pg ID 461
   Ǧ        ǡ ǡʹͲͳͳǤ
͵ͷǤ ǡȀ Ǥ
KheireddineBouzid ͵͸Ǥ ʹͶǡʹͲͲͺǡȋǲǳȌ ǦǤ ͵͹Ǥ ʹͶǡʹͲͲͺǡǯ        Ǥ       ǡ       ǡ       Ǥ      Ȁ    Ǥ ͵ͺǤ ʹͶǡʹͲͲͺǡǦ      ǡ     ǡ ʹͲͳͲǡ         Ǧ ǡ     ǯ ǡǡǡ  ǡ     ǡ       Ǥ ͵ͻǤ       Ǧ ǡ    Ȁ    ǡ       ǡ     ǡ  Ǥ
7 

2:12-cv-11656-AC-LJM Doc # 47 Filed 06/17/13 Pg 8 of 16 Pg ID 462
ͶͲǤ            ǦǤ
ͶͳǤ ǡȀ                Ǥ
ͶʹǤ Ȃ Ǥ
Defendants’QuestioningofReligiousPractices Ͷ͵Ǥ  Ǥ ͶͶǤ            ǡ    ǡ         Ǥ ͶͷǤ  Ǥ Ͷ͸Ǥ    ǡ           ǯ  ǡ        ǡǡ ǯ  ǡ        Ǥ Ͷ͹Ǥ    ǡ  ǡ ǡ  ǡ    ǡ       ǡ ǡ
8 

2:12-cv-11656-AC-LJM Doc # 47 Filed 06/17/13 Pg 9 of 16 Pg ID 463
         Ǧ       Ǧ         Ǥ
ͶͺǤ    ǡ  ǡ ǡ  ǡ ǡǡǡ                Ǥ
ͶͻǤ  ǡ ǡ  ǡ    ǡǡǡ  ǡ  ǡǡǣ
Ǥ ǫ Ǥ ǫ Ǥ ǫ Ǥ ǫ ͷͲǤ ǡǡ ǡ  ǡ         ǡ  ǡ         Ǥ ͷͳǤ   ͳǡ ʹͲͳͲǡ            ǡǡǤǡ
9 

2:12-cv-11656-AC-LJM Doc # 47 Filed 06/17/13 Pg 10 of 16 Pg ID 464
  ǡ  ȋǲ ǳȌ         ȋ ǲ ǳȌǤ            Ǥ
ͷʹǤ ǡ ǯȀ             ǡǡ       Ȁ      Ǧ  Ǧ Ǥ
ͷ͵Ǥ   ʹͶǡ ʹͲͳͳǡ    Ǧ ǡ  ȋǲǦǳȌ                         Ȁ Ǥ
ͷͶǤ      ͵ǡ ʹͲͳͳ         ʹͶǡʹͲͳͳǡǤǡǡǲ͸ǤǤǤȚ͵Ͷͷ Ͷʹ ǤǤǤ Ț ʹͲͲͲǦͳǡ              Ǥ  ǡ                     ǳ ȋ ǲ  ǳȌǤǤ
ͷͷǤ ǡǤ           
10 

2:12-cv-11656-AC-LJM Doc # 47 Filed 06/17/13 Pg 11 of 16 Pg ID 465
             ǣǲȏȐǡǤǤ     ȋȌ       Ǥǳ
ͷ͸Ǥ   ͵ǡ ʹͲͳͳǡ             Ǥ ǡ     ǯ        Ǧ                 ȋǲǳȌǤ Ǥ
ͷ͹Ǥ           ǲ ȏȐ ȏ Ȑ          ǡ Ǥǳ
ͷͺǤ    ǣȋͳȌͳ͹ǡ ʹͲͲͻǡ            ǡ ǲǢǳȋʹȌʹͲͲͻǡ ǲǢǳȋ͵Ȍ
ʹͳǡʹͲͳͲǡǲǫ    ǫ     ǫ  ǲ     
11 

2:12-cv-11656-AC-LJM Doc # 47 Filed 06/17/13 Pg 12 of 16 Pg ID 466
ǫǳ ȋͶȌ   ͸ǡ ʹͲͲͻǡ  ǡ  ǡ     
ǲǫǫǫǫ
ǫǲǯǫǳȋͷȌǡʹͲͳͲǡǡǡ
    ǲ   ǫ  ǲ      ǡ  
ǫǳȋ͸ȌͺǡʹͲͳͲǡǡǡ 
Ȃǲǫ
ǫǯǫǳȋ͹Ȍǡǡ
 ǲ
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ǲǡǡǳǡȋͻȌ ʹ͸ǡ
ʹͲͳͲǡ          ǲ     ǯǡǳ 
Ǥ
ͷͻǤ  ǡ   ǡ    ǡ  ǡ 
ǡǡǯǡ
   ǡ    ǡ     
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COUNTI VIOLATIONOFTHEFIRSTAMENDMENT TOTHEUNITEDSTATESCONSTITUTION
(FreeExerciseofReligion)1   
 1CountIwasdismissedbytheCourtinitsJune11,2013Order.Dkt.44.Also,theCourtissuedanOrderofBifurcation requiring the filing of two second amended complaints, one to be filed as Second Amended Complaint (Official – Capacity Defendants), and the second as, Second Amended Complaint (IndividualͲCapacity Defendants) (DKT#45).ForbothOrders,Plaintiffagreesastoformonly.
12 

2:12-cv-11656-AC-LJM Doc # 47 Filed 06/17/13 Pg 13 of 16 Pg ID 467
COUNTII VIOLATIONOFTHEFIRSTAMENDMENT TOTHEUNITEDSTATESCONSTITUTION
(EstablishmentClause)2 
COUNTIII VIOLATIONOFTHEFIRSTAMENDMENT TOTHEUNITEDSTATESCONSTITUTION
(Retaliation)3 
COUNTIV VIOLATIONOFTHEFIFTHAMENDMENT TOTHEUNITEDSTATESCONSTITUTION
(EqualProtection) 
͸ͲǤ         
Ǥ
͸ͳǤ 

ǦǤ
͸ʹǤ ǯ          

 
            
Ǥ
 2 Count II was dismissed by the Court in its June 11, 2013 Order.  Dkt. 44.  Also, the Court issued an Order of Bifurcationrequiringthefilingoftwosecondamendedcomplaints,onetobefiledasSecondAmendedComplaint (Official –Capacity Defendants), and the second as, Second Amended Complaint (IndividualͲCapacity Defendants) (DKT#45).ForbothOrders,Plaintiffagreesastoformonly. 3 Count III was dismissed by the Court in its June 11, 2013 Order.  Dkt. 44.  Also, the Court issued an Order of Bifurcationrequiringthefilingoftwosecondamendedcomplaints,onetobefiledasSecondAmendedComplaint (Official –Capacity Defendants), and the second as, Second Amended Complaint (IndividualͲCapacity Defendants) (DKT#45).ForbothOrders,Plaintiffagreesastoformonly.
13 

2:12-cv-11656-AC-LJM Doc # 47 Filed 06/17/13 Pg 14 of 16 Pg ID 468
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2:12-cv-11656-AC-LJM Doc # 47 Filed 06/17/13 Pg 15 of 16 Pg ID 469

COUNTV VIOLATIONOFTHERELIGIOUSFREEDOMRESTORATIONACT
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15 

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2:12-cv-11656-AC-LJM Doc # 47-1 Filed 06/17/13 Pg 1 of 6 Pg ID 471 FOR OFFICIAL USE ONLY

October 1, 2010 MEMORANDUM ,41vb

Homeland Security

MEMORANDUM FOR: Margo Schlanger, Officer for Civil Rights and Civil Liberties

FROM:

Senior A visor, Office for Civil Rights and Civil Liberties

SUBJECT:

Law enforcement questioning regarding religion

You asked me to examine case law regarding the permissible bounds of law-enforcement questioning of individuals regarding their religion, both at the border and within the United States. The query would encompass border inspections as well as consensual and custodial police interrogation, and law on religious profiling would also be relevant. But there is much less law in this area than one would expect. So, notwithstanding the fact that religious questioning and religious profiling implicate First Amendment considerations that questioning or profiling on ethnicity or race do not, there is relatively little to say, other than that courts presume the same limitations on religion-based police activity as on race-cognizant policing.
At the Border

Unlike race, ethnicity, and specific national origin, U.S. immigration laws do not, and historically have not, called for border personnel to track religious identity or practices. There are two, limited exceptions applicable when persons seek an immigration or customs benefit by virtue of religion: special immigration rules for religious workers, and special customs rules for controlled substances used in religious ceremonies. While one Court of Appeals judge recently suggested that First Amendment rights at the border may attenuate along with Fourth Amendment ones, no court has so held, and there is some law to the contrary.

Acquisition of Religion Information at the Border

For most of the early history of the United States, arriving aliens were not inspected at all, and there were essentially no grounds for exclusion. See generally Richard D. Steel, Steel on Immigration Law § 1:1 (2d ed. supp. 2010). The first statutory requirement that data be collected on all aliens seeking admission called for recordation of sex, race, marital status, occupation,
literacy, and nationality, but not religion. Act of March 3, 1903, ch. 1012, § 12, 32 Stat. 1213,
1216. When Congress added a limited literacy test for admission in 1917, it curiously styled the requirement as an exclusion of lain aliens over sixteen years of age, physically capable of
reading, who can not read the English language, or some other language or dialect, including Hebrew or Yiddish[.]" Pub. L. No. 64-301, § 3, 39 Stat. at 877 (emphasis added).

The early immigration laws also prohibited, in varying terms, entry by polygamists or those promoting polygamy. No distinction was drawn between religious and secular advocates of

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polygamy. See, e.g., Pub. L. No. 64-301, § 3, 39 Stat. at 875 (excluding "polygamists, or persons who practice polygamy or believe in or advocate the practice of polygamy").
The Immigration and Naturalization Act of 1952 and its multiple amendments have not sought religious information or used religion as grounds for exclusion, apart from the special rules for certain ministers and religious workers, discussed below. Religious persecution has, of course, been incorporated as possible grounds for refugee status. 8 U.S.C. § 1101(a)(42). Aliens attempting to establish refugee status at the time of admission may, accordingly, face questioning about religion by an asylum officer.
Ministers and other religious workers
When Congress began to create grounds for exclusion in the late 19th century, a general exception from the ban on contract labor was made for "ministers of any religious denomination," among other skilled professionals, Act of March 3, 1891, ch. 551, § 5, 26 Stat. 1084, 1085, an exception that may be constitutionally compelled. See Holy Trinity Church v. United States, 143 U.S. 457 (1892). Later law expanded the ministerial exception to "ministers or religious teachers." Pub. L. No. 64-301, § 3, 39 Stat. 874, 876 (1917). Those rules have been expanded, contracted, and refined over time, such that several advantages are available to noncitizen ministers and religious workers relative to other aliens. See 8 U.S.C. § 1101(a)(15)(R) & (a)(27)(C); § 1324(a)(1)(C); § 1428 (2010). None of these provisions differentiate among religious denominations.1
Passenger Name Record information
CBP could potentially come into possession of religion information through the automated acquisition of passenger name record (PNR) data from airlines. Some airline PNR systems contain special meal requests, which would at least suggest, for some individuals, a religious affiliation. It appears, however, that CBP's use, at least of PNR information obtained from European airlines, is scrubbed of all religion information before being ingested into the CBP database; that meal data fields are not ingested; and that free-text fields, while partially ingested, would not routinely convey meal information to the CBP system. See Undertakings of the Department of Homeland Security Bureau of Customs and Border Protection Regarding the Handling of Passenger Name Record Data, 69 Fed. Reg. 41,543 (July 9, 2004), superseded in part by Agreement Between the United States of America and the European Union on the Processing and Transfer of Passenger Name Record (PNR) Data by Air Carriers to the United States Department of Homeland Security (DHS) (July 26, 2007), available at www.dhs.gov/xlibrary/assets/pnr-2007agreement-usversion.pdf.
1 It is not immediately clear what immigration officials have historically accepted as proof that an entrant presenting for inspection is a religious worker. Current law indicates the alien holds the burden .of proof "to the satisfaction of the Attorney General" in this area. See, e.g., 8 U.S.C. § 1428 (allowing certain immigrant religious workers temporary absence from the United States, but requiring, upon return, "pro[of] to the satisfaction of the Attorney General that his absence from the United States has been solely for the purpose of performing the ministerial or priestly functions of such religious denomination, or of serving as a missionary, brother, nun, or sister").

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Sacramental controlled substances
Under the Religious Freedom Restoration Act, religious organizations may be exempted from the Controlled Substances Act for importation of certain controlled substances for religious purposes. Gonzales v. 0 Centro Espirito Beneficente Unielo do Vegetal, 546 U.S. 418 (2006).2 Any similar RFRA importation claim (or perhaps immigration claim, as by a polygamist claiming a RFRA right to adjust status for more than one spouse) could require affirmative disclosure of religious information when persons or goods are brought across the border.
Case law
It is beyond the scope of this memo to consider what constitutional standards would control efforts to determine the religious affiliation or practice of aliens seeking admission. It is well established that privacy expectations are diminished at the border, and that a balance between those diminished expectations and government interests is struck at a point more favorable to the government than in most other contexts. See United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (describing the "qualitatively different" Fourth Amendment analysis that obtains at the border). It is also clear that conduct and communications that would be shielded by First Amendment, as well as Fourth Amendment, protections inside the United States may be subject to state intrusion at the border. United States v. Ramsey, 431 U.S. 606 (1977) (approving warrantless inspection of arriving international airmail). And•the Supreme Court has strongly suggested, if not precisely held, that the exclusionary rule is not applicable to immigration adjudications, apart perhaps from "egregious" constitutional violations rendering a proceeding "fundamentally unfair," INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984), which would suggest that intrusive border questioning even on sensitive or First Amendmentprotected areas is liable to be countenanced by reviewing courts. See also Reno v. AmericanArab Anti-Discrim. Comm., 525 U.S. 471 (1999) (noting high bar to selective-prosecution claim in immigration context, requiring "outrageous" improper discrimination to quash enforcement).
It is also clear that nationality and citizenship are legitimate bases for discriminations at the border. Kandamar v. Gonzales, 464 F.3d 65, 72 (1st Cir. 2006). Few contemporary claims of discrimination on the grounds of religion are, in the immigration or border context, wholly separable from discrimination concerning nationality.3 See Rajah v. Mukasey, 544 F.3d 427, 439 (2d Cir. 2008). Thus, for example, challenges to the NSEERS program — on the grounds that it amounts to singling out nationals of predominantly Muslim countries — have been uniformly rejected by courts recognizing that the basis for the program is a permissible differentiation among countries, rather than a discrimination on the basis of the religion of the nationals of those
2 0 Centro recognized that RFRA created a statutory right (against federal entities) substantially stronger than the limited First Amendment right to religious exemptions to laws of general applicability recognized by Employment Division v. Smith, 494 U.S. 872 (1990).
3 Kwai Fun Wong v. United States, 373 F.3d 952 (9th Cir. 2004), which concerned an alien minister, may be one such exception: Petitioner's claims of religious and national origin discrimination apparently concerned her race, not her country of citizenship.

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countries. Rajah v. Mukasey, 544 F.3d 427, 439 (2d Cir. 2008) (collecting cases upholding NSEERS against equal protection challenges).
The closest a court has come to considering these issues directly is Tabba v. Chertoff; 509 F.3d 89 (2d Cir. 2007), a case challenging a CBP program requiring secondary inspection of all persons (including U.S. persons) returning from an Islamic conference in Toronto. Plaintiffs argued that their inspection — which lasted four to six hours, and involved some use of force went beyond the routine searches that are allowed without individualized suspicion at the border. The Second Circuit approved the program as a routine search, permitted without individualized suspicion, in light of CBP's intelligence suggesting the presence of terrorism-related individuals at the conference in Canada.
The program applied to all persons who had attended the conference — not to all Muslims arriving from Canada, but to non-Muslims (if any) who had attended — and so was not actually a religious classification. Accordingly, the court applied the intermediate scrutiny standard applicable to associational freedom claims under Roberts v. United States Jaycees, 468 U.S. 609 (1984), rather than a strict scrutiny analysis that could have followed from a true religious classification claim. Hence while the secondary screening constituted a significant burden on the plaintiffs' associational freedom, the compelling state interest established by the intelligence about the Toronto conference outweighed that burden.
Speaking only for himself, Judge Straub suggested that something less than the Jaycees standard could be applicable in border searches and seizures: "It may also be true that the First Amendment's balance of interests is [111- the Fourth Amendment's] qualitatively different where, as here, the action being challenged is the government's attempt to exercise its broad authority to control who and what enters the country." 509 F.3d at 102 n.5.
There is at least some authority suggesting Judge Straub's suggestion is wrong, notably Boyd v. United States, 116 U.S. 616 (1886), which struck down a statute allowing certain compelled statements from importers regarding goods potentially imported in violation of the customs laws. Though not speaking to the precise point, Boyd repeatedly and sharply distinguished between the government's nearly unbounded ability to seize physical contraband, and its limited ability to seize mere documentary information related to it. While Boyd is a Fourth and Fifth Amendment case, it at least suggests that the government's power to demand disclosure of First Amendment-protected information at the border is less than its ability to inspect, detain, and seize potential physical contraband.
By and large, however, courts faced with issues of religious questioning or profiling at the border have managed to avoid a holding on the issue. Kwai Fun Wong v. United States, 373 F.3d 952, 974 n.29 (9th Cir. 2004) (avoiding determining whether aliens paroled into the United States under the "entry fiction" have non-procedural rights, as against religious profiling, akin to potential entrants at the border, or persons lawfully present); Tungawara v. United States, 400 F.Supp. 2d 1213, 1220 n.4 (N.D. Cal. 2005) (avoiding deciding whether level of suspicion required to strip-search non-admitted aliens "need be particular to the individual as opposed to, for example, a category of those traveling from a particular place").

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Within the United States
While profiling on the basis of religion is frequently mentioned as illegitimate in precisely the same manner racial profiling is, there are essentially no cases discussing religious profiling separately from racial profiling, or religious questioning as such. While there are contexts in which police might discuss religion with suspects, these are not relevant to the question when police may raise religion in interrogation for the purpose of eliciting information about it.
Religious profiling and questioning
As in the border context, current claims of religious profiling are generally combined with allegations of racial, ethnic, or nationality discrimination: Police are accused of having singled an individual out for treatment due to an appearance that suggests a predominantlyMuslim ethnicity or nationality. Hence United States v. Quintana, 585 F.3d 1407 (11th Cir. 2009), concerned a Latino man seeking suppression of his arrest by officers who initiated a consensual encounter in part because they thought he was "Middle Eastern." No court appears to have distinguished religious from racial/ethnic/national origin discrimination in these contexts, where what draws police attention is a perceived ethnic, racial, or national characteristic that allegedly connotes a religious affiliation.
There are relatively few other cases involving religious questioning, and none, so far as I can discern, attempt to set forth a comprehensive standard for when police questioning about religion is proper and when it would intrude on First Amendment (free exercise) or Fifth or Fourteenth Amendment (privacy or equal protection) interests. A rare exception is Ramie v. City of Hedwig Village, 765 F.2d 490 (5th Cir. 1985), a § 1983 action where plaintiff sought damages for harassing and abusive police questioning concerning her actual and perceived gender and "whether she believed in Jesus Christ." Reversing a judgment for the plaintiff, the Fifth Circuit suggested that police have a general right to "ask the questions they believe will aid them in the investigation," even if "in retrospect some question may be determined to be irrelevant and not within the government's proper sphere of concern," so long as the invasion of privacy does not outweigh the public purpose. Id. at 492-93.4 But it is not clear that Ramie's essentially rationalbasis balancing is the appropriate rule when religion is involved.
Related contexts
Police use of religion to extract confession
Police interrogators will, not infrequently, reference religious concepts to elicit a suspect's guilt and prompt a confession or other statement. There is clear case law that police may appeal to religion — just as they may make entirely false statements — so long as the suspect's will is not overborne by a religious interrogation that rises to the level of coercion. See,
4 A handful of cases involve state investigations of public employees' religion where the employee has been accused or suspected of improperly combining religion with state business. E.g., Vernon v. City of Los Angeles, 27 F.3d 1385 (9th Cir. 1994). That circumstance is far removed from state questioning of private persons regarding religion.

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e.g., State v. Newell, 132 P.3d 833, 844 (Ariz. 2006) (explaining and applying doctrine); People v. Adams, 143 Cal. App. 3d 970 (1983) (same). It does not appear that these appeals to religion are aimed at eliciting information about the suspect's religion. If anything, they presuppose the religious views of the subject of the questioning, in order to obtain nonreligious information. These cases are therefore not helpful.
Sacramental controlled substances
As with importation, persons apprehended for use, possession, sale, or acquisition of controlled substances intended for sacramental use may have a religious defense to arrest or prosecution. It is at least possible police would ask a suspect apprehended with, say, peyote about his religious affiliation prior to effecting an arrest. But no reported cases set forth the permissible bounds of such questioning, and in general, persons capable of making a religioususe claim seem to know their rights and to assert them affirmatively in a police encounter. One court (pre-Smith and pre-RFRA, see supra note 2) rejected the idea that prearrest adversary process is required to test an individual's immunity from prosecution for possession of controlled substances for religious purposes. Golden Eagle v. Johnson, 493 F.2d 1179 (9th Cir. 1974).

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2:12-cv-11656-AC-LJM Doc # 47-2 Filed 06/17/13 Pg 1 of 3 Pg ID 477
Office for Civil Rights and Civil Liberties U.S. Department of Homeland Security Washington, DC 20528
May 3, 2011
Lena F. Masri, Esq Staff Attorney Council on American-Islamic Relations Michigan Chapter 21700 Northwestern Highway, Suite 815 Southfield, Michigan 48075
Re: Complaint No. 11-06-CBP-0150 (Yusuf Harper) Complaint No. 11-06-CBP-0151 (Yousef Mawry) Complaint No. 11-06-CBP-0152 (Anonymous Canadian Citizen) Complaint No. 11-06-CBP-0153 (Fawzy Mohamed) Complaint No. 11-06-CBP-0154 (Wissam Charafeddine) Complaint No. 11-06-CBP-0155 (Anonymous Muslim Female) Complaint No. 11-06-CBP-0156 (Kheireddine Bouzid) Complaint No. 11-06-CBP-0157 (Sheikh Ali Sulaiman Ali) Complaint No. 11-06-CBP-0158 (Abdulrahman Cherri) Complaint No. 11-06-CBP-0159 (Anonymous Egyptian Male)
Dear Ms. Masri:
The Office for Civil Rights and Civil Liberties received information from you on March 24, 2011, concerning repeated handcuffing, brandishing of weapons, prolonged detentions, invasive and humiliating body searches at the border, and inappropriate questioning that pertains to religion and religious practices by U.S. Customs and Border Protection (CBP) personnel.
Under 6 U.S.C. § 345 and 42 U.S.C. § 2000ee-1, the Office for Civil Rights and Civil Liberties has the responsibility to review and assess complaints against Department of Homeland Security employees and officials concerning violations of civil rights, civil liberties, and profiling on the basis of race, ethnicity, or religion. CRCL has received a number of complaints like yours, alleging that U.S. Customs and Border Protection (CBP) officers have engaged in inappropriate questioning about religious affiliation and practices during border screening. We will add these complaints to the investigation we are opening on this subject. We are unable to discuss the specifics of this investigation without the express written consent of these complainants; however, once we have their consent, we will provide you with more specific details concerning this investigation.
This Office takes allegations of violations of civil rights and civil liberties very seriously. The purpose of our review is to assess if your complaint implicates issues that should be addressed by Department of Homeland Security management. Under 6 U.S.C. § 345 and 42 U.S.C. § 2000ee-
1

1, our complaint process does not provide individuals with legal or procedural rights or remedies. Accordingly, this Office is not able to obtain any legal remedies or damages on your behalf or that of the above complainants. Instead, we use complaints like yours to find and address problems in DHS policy and its implementation.
Please note that Federal law forbids retaliation or reprisal by any Federal employee against a person who makes a complaint or discloses information to this Office. 42 U.S.C. § 2000ee-1(e). If you believe that the above complainants or someone else is a victim of such a reprisal, please contact us immediately.
As we begin our review of this complaint, a representative from this Office may contact you for additional information. If you have any questions concerning this complaint, you may contact this Office by phone at 866-644-8360, 866-644-8361 (TTY), or by email at crcl@dhs.gov. When you communicate with us, please include the complaint number. In addition, it is very important to notify us of any changes in your address or telephone number or the contact information of the complainants.
The Department of Homeland Security’s Traveler Redress Inquiry Program (DHS TRIP) is a program offering a single point of contact for individuals who have inquires or seek resolution regarding difficulties they experienced during their travel screenings at airports, train stations or border crossings. You may wish to encourage the above complainants, if they have not done so already, to file a redress request with DHS TRIP online at www.dhs.gov/trip or to complete the enclosed Travel Inquiry Form and send to the following address:
DHS Traveler Redress Inquiry Program (TRIP) 601 South 12th Street, TSA-901 Arlington, Virginia 22202-4220
We thank you for your complaint; inquiries like yours help the Department of Homeland Security meet its obligation to protect civil rights and civil liberties. You can expect to receive a letter from us informing you how we have concluded this matter.
Sincerely,

Encl.

Margo Schlanger Officer for Civil Rights and Civil Liberties U.S. Department of Homeland Security

2:12-cv-11656-AC-LJM Doc # 47-2 Filed 06/17/13 Pg 3 of 3 Pg ID 479
Office for Civil Rights and Civil Liberties U.S. Department of Homeland Security Washington, DC 20528
3

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May 3, 2011

Office for Civil Rights and Civil Liberties
U.S. Department of Homeland Security
Washington, DC 20528
Homeland ibss Security
44

MEMORANDUM FOR:

Alan Bersin Commissioner U.S. Customs and Border Protection

FROM:

Alfonso Robles Chief Counsel U.S. Customs and Border Protection
Margo Schlanger Officer for Civil Rights and Civil Liberties

SUBJECT:

Audrey J. Anderson Associate General Counsel (Legal Counsel) Office of the General Counsel

Complaint No. 10-10-CBP-0137 1(b) (6) Complaint No. 11-06-CBP-0167 1(b) (6) Complaint No. 11-06-CBP-0168 I(b) (6) Complaint No. 11-06-CBP-0169 1(b) (6) Complaint No. 11 -05-CBP-0162 i(b) (6) Complaint No. 11 -06-CBP-0160 ((b) (6) Complaint No. 11 -03 -CBP-0163 i(b) (6) Complaint No. 11-06-CBP-0150 I(b) (6)
Complaint No. 11 -06-CBP-0161 I(b) (6) Complaint No. 11 -03 -CBP-0164 i(b) (6) Complaint No. 11 -06-CBP-0151 1(b) (6)
Complaint No. 11-06-CBP-0152 Anon mous (b) (6) Complaint No. 11-06-CBP-0153 ((b) (6) Complaint No. 11-06-CBP-0154 ((b) (6)

Citizen)

Complaint No. 11-06-CBP-0155 Anon mous Mus im Female) Complaint No. 11 -06-CBP-0156 1(b) (6) Complaint No. 11-06-CBP-0157 1(b) (6) Complaint No. 11-06-CBP-0158 /(b) (6) Complaint No. 11 -06-CBP-0159 /(b) (6)
Complaint No. 11 -03 -CBP-0165 ((b) (6)
Complaint No. 11 -03-CBP-0166 i(b) (6)
Complaint No. 11 -05-CBP-0136 I(b) (6)

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Complaint No. 11-05-CBP-0171 ((b) (6)

The Office for Civil Rights and Civil Liberties (CRCL) has received numerous accounts from American citizens, legal permanent residents, and visitors who are Arab and/or Muslim, alleging that officials from U.S. Customs and Border Protection (CBP) repeatedly question them and other members of their communities about their religious practices or other First Amendment protected activities, in violation of their civil rights or civil liberties, or otherwise target them for extra scrutiny, questioning, or inappropriate comment based on their ethnicity or apparent religion. The purpose of this memorandum is to notify you of the complaints and describe the allegations, inform you that CRCL will retain these complaints for investigation, and explain how CRCL will work with CBP during our investigation.

ALLEGATIONS

The complainants allege they have been questioned about their religious practices and other inappropriate topics at land and air ports of entry. Allegations were received from a variety of sources, including correspondence directed to the Department by the ACLU and Muslim Advocates; a recent story that aired on National Public Radio (NPR); individually filed complaints; and a set of complaints filed on March 31 by the Council on American-Islamic Relations Michigan (CAIR-MI). Due to the number of complaints, the allegations are organized by Field Office and port of entry.

Boston Field Office Boston Logan International Airport (BOS) CRCL's Community Engagement Section conducts outreach and engagement events in the Bostonmetro area. During that engagement, Muslim community members have expressed concerns about questions they are asked when returning to the United States. These questions include: what religion do you belong to? How religious are you? How often do you pray? Where do you pray? What mosque do you attend? and Why do you wear a beard?

1) More particularly, CRCL received a complaint from (b) (6)

a U.S. citizen, who alleges

(by his counsel, the ACLU) that since 2004, he has been sub ect to repeated delays by CBP when he

presents himself for admission at U.S. ports of entr

lives in the Boston area, and

travels frequently though Logan airport. (b) (6)

a eges t at his questioning during secondary

inspections have been highly inappropriate. He a eges he has been asked: what mos• ue he •rays at;

how often he prays; and whether any of his family members are strictly religious. (b) (6)

alleges his religion and national origin are the basis for his repeated referrals and sussequent

inappropriate questioning. In April 2010, (b) (6)

alleges that his computer, cell phone, and iPod

were taken from him for three hours• and when e arose from his seat to ask about his status an

officer elled at him to sit down. (b) (5)

2) (b) (6)

has complained via our en ta!ement meetings that he has been asked at Logan

how often e prays and what mosque he attends. (b) (6)

also alleges that during a four hour

inspection on November 17, 2009, he was denied t e use o a restroom and his electronic media

were confiscated.

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3) (b) (6)

has complained via our engagement meetings that in August 2009 he

was asked what mosque he attends and how often he prays.

4) (b) (6)

has complained via our engagement meetings that on September 5, 2009, she

was detained wit er children for four hours. She alleges that her son was asked if the number on

his basketball jersey was a reference to the Quran, that CBP did not allow her to respond to her

daughter's cries, and that she was not provided with an interpreter, even though her English

proficiency is low. (b) (6)

alleges she was asked why she purchased clothing in Egypt, why she

did not marry overseas ice other Somali women, and why she was not fasting on a particular day.

Buffalo Field Office Rainbow Bridge Port of Entry

5) A letter to the DHS Office of Inspector General from the ACLU and Muslim Advocates
since referred to CRCL) and the referenced NPR story both allege that on February 21, 2010,
was referred to a secondary inspection which lasted over four hours. During his inspection, (b) (6) alleges he was asked a series of inappropriate questions, including: When did you convert? W en • i• you become a Muslim? Which mosques do you attend? and How often do you attend the mosque?

6) According to the same NPR story, (b) (6)

presented her passport to the CBP officer in

primary earlier this year, and was subjecte• to . iscriminatory treatment based on her perceived

status as a Muslim. For example, when her traveling companion (who wore a head covering) stated

that she was in Canada to work on a stor of a notorious religiously-motivated murder of a Muslim

woman, the CBP officer asked (b) (6) if she was related to the murderer.

Service Port - Champlain

7) According to the ACLU/Muslim Advocates letter, on August 6, 2009, (b) (6)

a U.S.

citizen, arrived at the "Champlain border crossing." He was referred to secondary inspection for one

hour. During his inspection officers allegedly asked: Do you go to the mosque? Why? How often?

What mosque? Are you an Imam at the mosque? and Are you Shi'a or Sunni?

Lewiston Bridge Complex

8) In a complaint forwarded to CRCL by CAIR-MI, (b) (6)

a U.S. citizen, states that in

January 2010, after attending a conference on "Reviving t e Spirit in Islam," he was asked a series

of demographic questions. After an hour, a plain clothed officer asked him: Are you Muslim? Do

you pray five times a day, in the mosque? Are there any extremists in our mosques? and Do you

know any extremists? An hour later, two FBI agents arrived and questioned him because the

"underwear guy from Nigeria had just tried to blow up a plane." The FBI agents asked him all of the

questions listed above, as well as questioning him about his stay in Saudi Arabia and if that was

where he converted to Islam. He states he was subject to similar questions in Miami in April 2010,

however, when he was stopped at the Port Huron Port of Entry in January 2011, he was not asked

religious questions.

Miami Field Office

•Fort Lauderdale Airport (FLL)

9) According to the NPR story, (b) (6)

a professor of Middle Eastern studies at

Georgetown University, was referre• to secons ary inspection allegedly due to his "location of birth."

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While his account of his questioning is not entirely clear, (b) (6)

implies that his

American loyalty was questioned due to his perceived religion or ethnicity.

Seattle Field Office

Pacific Highway Crossing

10) According to the ACLU/ Muslim Advocates letter, on July 8, 2010, (b) (6)

a

U.S. citizen, was handcuffed when he presented himself for admission with is wife any one-year-

old daughter. An FBI agent questioned (b) (6)

during his inspection, and allegedly asked:

What mosque do you attend? How often do you attend the mosque? So you don't consider yourself

a religious person? Does anybody [at the mosque] talk about going back to the motherland? Do you

give donations? Don't you have to pay a certain amount of your money religiously? Who do you

give [charity] to? and Do you belong to any organizations?

Detroit Field Office
On March 24, 2011, CAIR-MI forwarded to CRCL a number of complaints on this topic, and alleged more generally that American Muslims crossing the U.S. (b) (6) border are subject to extensive questions about their religion and religious practices. CAIR-MI alleges that the following questions are most common: Do you pray five times a day? Which mosque do you pray at? Do you pray your morning prayer at the mosque? Who is the Imam at your mosque? Who else prays at your mosque? Which Muslim charities have you donated to? Which Muslim countries have you traveled to? During your travels to these countries, have you been approached by anyone suspicious? What do you think of Anwar al-Awlaki? Which Muslim organizations are you affiliated with? Are you affiliated with any terrorist organizations? Do you know any terrorists? and Are there terrorists in our mosques? The complaints connected to the Detroit Field Office listed below were all forwarded to us by CAIR-MI.

Unknown POE

11)(b) (6)

and a traveling companion, (b) (6)

allege that they were surrounded by

officers wit rawn guns after .resenting their passports. After being handcuffed and taken to the

secondary inspection area, (b) (6)

was asked, inter alia whether id he attended Islamic schools,

and what he thinks about Anwar Al Awlaki.

Ambassador Bridge Passen:er Facility 12) An anonymous (b) (6) citizen of Somali origin alleges that on May 25, 2010, she was
subjected to an intensive an* umiliating personal search by a female officer, because of her national origin. She alleges the only question CBP asked her was where she was headed. Several Somalis mentioned that they heard CBP Officers in the booths ask each other "are we still pulling over the Somalis?"

13)(0) (6)

a U.S. citizen, states that he is a truck driver who crossed the border

frequent y wit a "FAST Express Card." (b) (6)

alleges that repeated referrals to secondary

inspection based on his ethnicity while he was . riving is commercial vehicle forced him to drive

less lucrative routes. He has filed a redress request with DHS TRIP (Redress number 2104553).

14)(b) (6)

a U.S. citizen, alleges that he has been subjected to repeated intensive

inspections at the or. er. He is repeatedly taken to the secondary inspection area in handcuffs,

where he has stayed for hours, unable to place a phone call or use the restroom in private. He alleges

that he has been asked many times about, "relations, relatives, work, . . . associations, organization

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memberships, and other questions." (b) (6)

states that he has filed multi le DHS TRIP

requests, but continues to be referre• for a. • itiona inspection. Again, (b) (6)

alleges that

it is his ethnicity that is provoking extra scrutiny.

Detroit-Windsor Tunnel
15) An "Anonymous Muslim female of Somali origin," of unknown citizenship, alleges that during border screening, after she was processed through US-VISIT, she was subjected to an intensive personal search that was "rough" and "humiliating." She alleges that the CBP Officer asked her to remove her hijab, but she refused.

Detroit Metro solitan Airport (DTW)

16)(b) (6)

a U.S. citizen, alleges that when he presented himself for admission on

July 17, 2010, he was as ce : What mosques he attended; if he was involved in any Islamic

organizations; if he knew any terrorists or people involved in terrorism; the names and birthdates for

a number of his family members, both those who live in the United States and overseas. He believes

officers "googled" his name and asked him if he was involved in organizing a mosque-cleaning

project several years ago. (b) (6)

states his questioning was four or five hours in duration, only

ending when he fell asleep in is c

17)(3) (6)

states that he always has difficulties upon returnin: to the U.S., but

that it is worst at t e Detroit Metropolitan Airport. Questions include: which (b) (6) he is an imam

at; what kinds of duties he performs; his roles in the Islamic organizations he a i sates with; how

much money he brought to his community. In July 2010, he missed a connecting flight as a result of

a four hour inspection.

Port Huron Port o Entr

18)(b) (6)

citizenship unknown, states that he been stopped repeatedly by CBP,

and eac inspection is of increasing duration. At one such stop, an FBI agent allegedly asked about

his place of worship and how many times he attended per week; his address in Lebanon; who he sees

in Lebanon; whether he is affiliated with any terrorist organizations in Lebanon; and if his relatives

have criminal records. In January 2011, he was met at the aircraft door by CBP at JFK and asked

about his trip to Kuwait.

19)(b) (6)

alleges that he has been "racially profiled, mocked, harassed, and

threatenee • y o icers at t e order crossing and was searched, handcuffed, put into a room to stand

while handcuffed and interrogated, all of which took 2 hours and twenty five minutes." A CBP

officer, upon recognizing the complainant asked, "Is this conference you went to just a 'religious'

thing?"

Atlanta Field Office

Atlanta Hartsfield/Jackson International Airport (ATL)

20) Included in the ACLU/Muslim Advocates letter is a complaint about

a U.S.

citizen, who alleges that he has been questioned by CBP about protected belie s, • actices an

associations on a number of occasions. Most recently, in early August 2009, (b) (6) was

questioned by CBP for three hours about his involvement with a Muslim stile ent association.

New York Field Office John F. Kennedy International Airport (JFK)

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21) The same ACLU/Muslim Advocates letter alleges that on August 18, 2010, U.S. citizen, was asked about holy sites he visited on his trip abroad and also asked t e fo owing questions: Do you visit any Islamist extremist websites? Are you part of any Islamic tribes? Have you ever been to a madrassa or studied Islam full-time? and Do you attend a particular mosque?

22) In a complaint sent to CRCL by the CBP INFO Center,

was referred to

secondary inspection and asked the origin of his last name. He fee s that is extensive questioning

was discriminatory based on his ethnicity.

Uns i ect ted 0 ices

23)03) (6)

recently wrote the Deputy Secretary, by counsel, to complain that he was on

February 26, 2010 su jected to questioning about whether he was Sunni or Shi'ite, and told that he

should expect to face similar questioning again. The letter was forwarded to CRCL for response.

In short, CRCL has received numerous complaints on this topic, with certain obvious commonalities among them. We should note that we have every expectation that at least some of the complainants are the subject of look-outs or watchlisting. Our investigation will be sensitive to the security needs served by border questioning of such individuals.

CRCL
CRCL Mission. CRCL supports the Department's mission to secure the Nation while preserving individual liberty, fairness, and equality under the law. CRCL integrates civil rights and civil liberties into all the Department's activities:
• Promoting respect for civil rights and civil liberties in policy creation and implementation by advising Department leadership and personnel, and state and local partners;
• Communicating with individuals and communities whose civil rights and civil liberties may be affected by Department activities, informing them about policies and avenues of redress, and promoting appropriate attention within the Department to their experiences and concerns;
• Investigating and resolving civil rights and civil liberties complaints filed by the public regarding Department policies or activities, or actions taken by Department personnel;
• Leading the Department's equal employment opportunity programs and promoting workforce diversity and merit system principles.

CRCL authorities. Under 6 U.S.C. § 345 and 42 U.S.C. § 2000ee-1, CRCL is charged with investigating and assessing complaints against DHS employees and officials of abuses of civil rights, civil liberties, and profiling on the basis of race, ethnicity, or religion. The procedures for our investigations and the recommendations they may generate are outlined in DHS Management Directive 3500.

Access to information. More particularly, 42 U.S.C. § 2000ee-1(d) grants this Office access to the "information, material, and resources necessary to fulfill the functions" of the office, including the complaint investigation function; Management Directive 3500 further authorizes CRCL to:

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• "Notify[] the relevant DHS component(s) involved of the matter and its acceptance by CRCL, and whether the matter will be handled by CRCL or by the component organization";
• "Interview[] persons and obtain[] other information deemed by CRCL to be relevant and require[] cooperation by all agency employees"; and
• "Access[] documents and files that may have information deemed by CRCL to be relevant."
Reprisals forbidden. In addition, 42 U.S.C. § 2000ee-1(e) forbids any Federal employee to subject a complainant or witness to any "action constituting a reprisal, or threat of reprisal, for making a complaint or for disclosing information to" CRCL in the course of this investigation. This memorandum and its accompanying request for information are pursuant to these authorities. Privilege and required transparency. Our communications with CBP personnel and documents generated during this review, particularly the final report, will be protected to the maximum extent possible by attorney-client and deliberative process privileges. Under 6 U.S.C. § 345(b), however, we submit an annual report to Congress—also posted on CRCL's Web site—that is required to detail "any allegations of [civil rights] abuses . . . and any actions taken by the Department in response to such allegations." We look forward to working with your staff on this matter and will report back to you our findings and any recommendations. SCOPE OF REVIEW
(b) (5)
QUESTIONS PRESENTED This investigation will cover the following issues:
(b) (5)

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It is possible that our investigation will reveal other matters of concern; if this occurs, we will inform you.

INITIATING THE INVESTIGATION

We request an initial discussion with your agency about this complaint and our plans for reviewing

the matter. (b) (6)

will be staffing this review, and I will remain closely involved. As

you and your staff are aware, I have already conducted three meetings on these and related questions

(though not examining particular cases), at airport ports of entry in Detroit, Boston, and Washington

Dulles. I am also due to meet soon with staff from the CBP's National Targeting Center and CBP's

Office of Intelligence and Operations Coordination on this as well as related topics.

Given the reach and number of these complaints and the sensitivity of this matter, it seems most

appropriate to open this investigation with an "entrance meeting," involving appropriate CBP and

CRCL personnel. For CRCL, the participants will include at least myself, Jeff Blumberg (the

Director of CRCL's Compliance Branch), (b) (6)

and OGC Counsel. I imagine both OR)

CBP Counsel, and your front office may wis to atten . Please have someone inform (b) (6)

who at CBP should be included.

We look forward to working together to determine all the facts surrounding this matter and if

appropriate, the best way forward. If ou have any questions, 'lease do not hesitate to contact me;

your staff can also reach out to (1)) (6) email at

by phone at (b) (6)

866-644-8361 (TTY) or by

Copies to:

Thomas S. Winkowski Assistant Commissioner Office of Field Operations U.S. Customs and Border Protection
(b) (6)

Joint Inta e Center U.S. Customs and Border Protection
(b) (6)

(b) (6)
Executive Director Office of Diversity and Civil Rights U.S. Customs and Border Protection
(b) (6)

Andrew Farrelly (A)Chief of Staff Office of Field 0 s erations

Nena Morgan
Director, Human Capital Division
Office of Field 0 • erations
(b) (6)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ABDULRAHMAN CHERRI, ET AL.,
PLAINTIFFS,
v.
JAMES B. COMEY, JR. ET AL.,
DEFENDANTS.

No. 2:12-CV-11656
District Judge: AVERN COHN Magistrate: UNA

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO COMPEL DISCOVERY
AND
DEFENDANTS’ CROSS-MOTION FOR A PROTECTIVE ORDER

2:12-cv-11656-AC-LJM Doc # 90 Filed 04/28/15 Pg 2 of 46 Pg ID 1015
ISSUES PRESENTED Plaintiffs’ only surviving claim is that they, as Muslim Americans, were asked religious questions when crossing the U.S. border at ports of entry, while other similarly-situated non-Muslims were not asked religious questions. Plaintiffs have engaged in extensive discovery. Defendants have acceded to the 10 depositions provided for by Federal R. Civ. P. 30, even though not all the notices were timely. Defendants have responded to four sets of requests for production of documents, even though only two were timely. And Defendants have responded to two sets of interrogatories, even though neither was timely. In addition to all of this discovery, Plaintiffs now move to compel the disclosure of three documents listed on Defendants’ privilege logs and seek three additional depositions under Fed. R. Civ. P. 30(b)(6). The issues presented in Plaintiffs’ motion to compel and Defendants’ cross-motion for a protective order are these: (1) Whether the law enforcement privilege protects Defendants from
producing the redacted portions of a U.S. Immigration and Customs Enforcement Sample Questionnaire and two training documents withheld in full by the Federal Bureau of Investigation? (2) Whether Defendants are entitled to a protective order against Plaintiffs’ Rule 30(b)(6) deposition notices because the notices are untimely and
ii

2:12-cv-11656-AC-LJM Doc # 90 Filed 04/28/15 Pg 3 of 46 Pg ID 1016
exceed the number of depositions permitted under the Federal Rules, and because the 33 topics in the notices are overly broad, cumulative, and unduly burdensome?
iii

2:12-cv-11656-AC-LJM Doc # 90 Filed 04/28/15 Pg 4 of 46 Pg ID 1017
PRINCIPAL AUTHORITIES 1.) Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) 2.) Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288 (6th Cir.
2007) 3.) In re New York City, 607 F.3d 923 (2d Cir. 2010) 4.) U.S. v. $463,497.72, 779 F. Supp. 2d 696 (E.D. Mich. 2011) 5.) In re Packaged Ice Antitrust Litig., 2011 WL 1790189 (E.D. Mich. May 10,
2011) 6.) Equal Emp't Opportunity Comm'n v. Chrysler LLC, 2008 WL 2622948
(E.D. Mich. July 2, 2008) 7.) Parrottino v. Bankers Life & Cas. Co., 2014 WL 1516195 (E.D. Mich. Apr.
17, 2014) 8.) Phoenix Life Ins. Co. v. Raider-Dennis Agency, Inc., 2010 WL 4901181
(E.D. Mich. Nov. 24, 2010) 9.) Richardson v. Rock City Mech. Co., LLC, 2010 WL 711830 (M.D. Tenn.
Feb. 24, 2010)
iv

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INTRODUCTION The only remaining claim in this lawsuit is a Fifth Amendment equal protection claim. Plaintiffs allege that they, Muslim Americans entering the United States at ports of entry, were asked questions about their religion, while similarly-situated non-Muslim travelers were not. As part of the discovery on this one claim, Plaintiffs have already taken nine depositions, received approximately 3,500 pages of documents (in response to multiple sets of requests for production of documents), and received responses to their interrogatories. Nonetheless, on March 16, 2015, Plaintiffs made an untimely motion to compel the following additional discovery from Defendants: (1) a fourth set of requests for production of documents (containing 13 additional requests addressed to U.S. Immigration and Customs Enforcement (ICE)); (2) a second set of interrogatories (containing 3 interrogatories addressed to ICE); (3) a deposition of ICE Special Agent Matthew Sabo; (4) an unredacted version of ICE’s Sample Questionnaire (Bates No. ICE000001-000005); (5) the production of the documents numbered FBI #1, #2 and #4 on the Federal Bureau of Investigation’s (FBI) privilege log; and

2:12-cv-11656-AC-LJM Doc # 90 Filed 04/28/15 Pg 6 of 46 Pg ID 1019
(6) three Fed. R. Civ. P. 30(b)(6) depositions consisting of 33 broad topics addressed to ICE (6 topics), U.S. Customs and Border Protection (CBP) (14 topics), and the FBI (13 topics). In response, Defendants carefully reviewed the record of the litigation, including the previous discovery, and agreed to the following additional discovery (using the numbers listed above): (1) on March 23, 2015 Defendants responded to Plaintiffs’ Fourth Set of Requests for Production of Documents; (2) on March 23, 2105, Defendants responded to Plaintiffs’ Second Set of Interrogatories; (3) Defendants agreed to make ICE Special Agent Sabo available for a deposition; and (5) Defendants produced FBI #1 in its entirety. Thus, the motion to compel is now narrowed to three documents (an unredacted version of the ICE Sample Questionnaire, FBI #2 and FBI #4), and the three 30(b)(6) depositions. Defendants oppose producing the three documents and hereby move for a protective order from the notices for Rule 30(b)(6) depositions. Defendants oppose any further discovery on the grounds that it is untimely. Discovery closed on July 7, 2014. Even the additional discovery period the Court permitted for specific, limited discovery, closed on December 1, 2014. See Minute Order Resetting Scheduling Order Deadlines (Aug. 7, 2014). Defendants oppose producing an unredacted version of the ICE Sample Questionnaire because the redacted information is not relevant (Defendants have
2

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produced the questions that relate to religion) and because it is protected by the law enforcement privilege. Defendants have submitted the Declaration of Derek Benner, Deputy Executive Associate Director, Homeland Security Investigations for ICE, attached as Exhibit A, which explains how providing an unredacted version of the ICE Sample Questionnaire would reveal law enforcement techniques. (As per the Court’s order, Defendants have submitted an unredacted version of the Sample Questionnaire to the Court for its ex parte and in camera review.)
Defendants oppose producing FBI #2 and FBI #4 because they are protected from disclosure by the law enforcement privilege. (As per the Court’s order, Defendants have submitted FBI #2 and FBI #4 to the Court for its ex parte and in camera review.) In support of the assertion of this privilege, Defendants have submitted a declaration from the appropriate FBI official (ex parte and in camera). FBI #2 is also classified and contains national security information, so if the Court does not agree that FBI #2 is protected by the law enforcement privilege, Defendants request additional time to consider whether an assertion of the state secrets privilege is appropriate.
Defendants also seek a protective order from all 33 topics set forth in the Rule 30(b)(6) deposition notices because the deposition notices were untimely;
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Plaintiffs have already noticed the ten depositions provided for by the Federal Rules of Civil Procedure; the breadth of the 30(b)(6) topics creates an undue burden on Defendants; the topics are overbroad and irrelevant to the sole remaining issue in the case; and the discovery would be cumulative in light of the previous discovery and the stipulations proffered by Defendants, including CBP’s proffer to designate the appropriate portions of a previous deposition as 30(b)(6) testimony and the FBI’s proffer to stipulate, inter alia, that the relevant policy does not prohibit FBI agents from asking religious questions.
Accordingly, Plaintiffs’ motion to compel the release of the three documents should be denied, and Defendants should be granted a protective order from the three 30(b)(6) deposition notices.
BACKGROUND On April 13, 2012, Plaintiffs filed this lawsuit and brought five claims alleging that official-capacity Defendants FBI, CBP, and Department of Homeland Security (DHS) violated their rights protected under the Constitution, and under the Religious Freedom Restoration Act. See ECF 21 (amended complaint). On June 11, 2013, the Court dismissed four of those five claims, leaving only Plaintiffs’ contention that Defendants violated their equal protection rights under the Fifth Amendment. ECF No. 44. The Court explained that “Plaintiffs are
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challenging the[ir] religious questioning,” id. at 2, and noted that their equal protection claim rests on the allegations that Defendants’ “policy, custom and practice [of religious questioning] is only applied against Muslims, and not travelers of other faiths,” id. at 29.
The parties then engaged in discovery, which included requests for the production of documents, interrogatories, requests for admission, and depositions. Defendants produced approximately 3,500 pages of records to Plaintiffs. After the deadline for serving written discovery closed on March 14, 2014, see ECF No. 61, Plaintiffs took 9 depositions: 7 of CBP officers who interviewed Plaintiffs during border crossings when they alleged inappropriate religious questioning; CBP’s Director of Field Operations for the ports of entry in Michigan; and the DHS Civil Rights and Civil Liberties official who investigated Plaintiffs’ complaints of inappropriate religious questioning. Defendants deposed all three Plaintiffs. On July 3, 2014, Plaintiffs emailed Defendants a notice for a 30(b)(6) deposition of FBI. Discovery closed on July 7, 2014, ECF No. 61, and motions for summary judgment were due on August 22, 2014, id. & ECF No. 57.
On August 17, 2014, Plaintiffs emailed Defendants additional requests for written discovery, both requests for production and interrogatories, and notices for 30(b)(6) depositions of CBP and FBI. See ECF No. 78. Defendants objected
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because, among other reasons, the parties had previously agreed that the deadline for serving written discovery was March 14, 2014, and because the deadline for completing all discovery was July 7, 2014. ECF No. 61.1 The Court held a telephonic conference on this issue and, over Defendants’ objections, allowed Plaintiffs to serve these additional requests for written discovery on September 23, 2014. ECF No. 78. The Court deferred ruling on Plaintiffs’ notices for 30(b)(6) depositions of CBP and FBI pending the completion of written discovery. The parties subsequently agreed to a stipulated order limiting the scope of this additional written discovery. ECF No. 83. Defendants produced additional documents and responded to Plaintiffs’ interrogatories. The Court ordered discovery to close on December 1, 2014. See Minute Order (Aug. 7, 2014).
On February 13, 2015, Plaintiffs sought a telephone conference with the Court to address certain discovery disputes. See ECF No. 84. During that conference, the Court allowed Plaintiffs to file a motion to compel discovery. See id. On February 19, 2015, Plaintiffs served their Fourth Set of Requests for Production of Documents and Second Set of Interrogatories, which sought discovery from ICE; Defendants responded on March 23, 2015. On March 16,
1 On May 2, 2014, Plaintiffs moved to amend the discovery plan by, among other things, extending the deadline for serving written discovery until July 7, 2014. ECF No. 64. But, on May 30, 2014, Plaintiffs withdrew that motion. ECF No. 74.
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2015, Plaintiffs filed their motion to compel discovery. ECF No. 86 (“Motion” or “Pl. Mot.”). Despite receiving additional written discovery, Plaintiffs did not change any of the 33 Rule 30(b)(6) deposition topics. Compare id. Exh. C at 1-9 with ECF No. 79 & 80.
I. The Court Should Deny Plaintiffs’ Motion to Compel the Disclosure of Certain Information Identified on Defendants’ Privilege Logs because It is Protected by the Law Enforcement Privilege.
Plaintiffs move to compel the disclosure of three documents2 that Defendants withheld pursuant to the law enforcement privilege: ICE000001000005 (withheld in part), FBI #2 (withheld in full), and FBI #4 (withheld in full). Plaintiffs’ Motion should be denied because Defendants have properly asserted and supported their withholdings.
“The purpose of th[e] [law enforcement] privilege is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation.” In re Dep’t of Investigation of the City of N.Y., 856 F.2d 481, 484 (2d Cir. 1988). A proper review of an assertion of the law
2 Plaintiffs move to compel the disclosure of the material described in FBI #1, but Defendants have since disclosed that material to Plaintiffs in its entirety.
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enforcement privilege involves three steps. “First, the party asserting the law
enforcement privilege bears the burden of showing that the privilege indeed applies
to the documents at issue” by showing that the documents contain information
pertaining to law enforcement techniques and procedures, information that would
undermine the confidentiality of sources, information that would endanger witness
and law enforcement personnel, information that would undermine the privacy of
individuals involved in the investigation, or information that would seriously
impair the ability of a law enforcement agency to conduct future investigations. In re New York City, 607 F.3d 923, 948 (2d Cir. 2010).3 Second, once the privilege
is determined to apply, “the district court must balance the public interest in
nondisclosure against ‘the need of a particular litigant for access to the privileged
information.’” Id. (quoting In re Sealed Case, 856 F.2d at 272). There is a strong
3 The Sixth Circuit has not addressed the standard that a district court should apply to evaluate the Government’s assertion of the law enforcement privilege. The Second Circuit’s decision in New York City, however, provides a formalized analysis of the law enforcement privilege drawn in significant part from the D.C. Circuit’s decision in In re Sealed Case, 856 F.2d 268 (D.C. Cir. 1988), see New York City, 607 F.3d at 944-949, and several district courts in this Circuit have relied upon that D.C. Circuit decision to determine when information is properly protected by the law enforcement privilege. See U.S. v. $463,497.72, 779 F. Supp. 2d 696, 713 (E.D. Mich. 2011) (citing generally to In re Sealed Case); Moody v. Mich. Gaming Control Bd., No. 12-13593, 2013 WL 3013862, at *4 (E.D. Mich. June 18, 2013) (same).
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presumption against lifting the privilege that may be rebutted only by a showing that the lawsuit is non-frivolous and brought in good faith, that the information sought is not available through other discovery or from other sources, and that the party has a compelling need for the privileged information. Id. Third, “[i]f the presumption against disclosure is successfully rebutted [], the district court must then weigh the public interest in nondisclosure against the need of the litigant for access to the privileged information before ultimately deciding whether disclosure is required.” Id.
Each of the three documents sought by Plaintiffs is properly protected from disclosure by the law enforcement privilege.
A. ICE Sample Questionnaire Defendants produced to Plaintiffs a redacted version of ICE’s Sample Questionnaire, which is Bates-numbered ICE000001-000005.4 As explained in the Declaration of Derek Benner, Deputy Executive Associate Director, Homeland Security Investigations for ICE, the information that ICE redacted did not involve religious questions and its disclosure risks undermining an investigative technique
4 As per the Court’s Order, Defendants have provided an unredacted copy for the Court’s ex parte, in camera review.
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currently used by ICE, and that information is therefore properly protected from disclosure by the law enforcement privilege. See Benner Decl. ¶¶ 4-5.
ICE created the Sample Questionnaire to provide their special agents a guide for conducting certain types of investigative interviews. See id. ¶ 5. Although ICE expects that its special agents will use their knowledge and experience to formulate interview questions that may be different from those listed in the Sample Questionnaire, that document is a “roadmap” of the “types of information that is of interest to ICE and the types of questions used to obtain that information.” Id.
The information that Defendants have redacted from the Sample Questionnaire is properly protected from disclosure by the law enforcement privilege because it is not relevant to Plaintiffs’ equal protection claim, and because its disclosure risks significantly undermining the effectiveness of a law enforcement technique that ICE currently employs. As explained by Deputy Director Benner, the Sample Questionnaire is a law enforcement technique currently used by ICE special agents. Id. ¶ 6. Disclosure of this information could seriously impair ICE’s future investigative activities because it would reveal with certainty the types of information of interest to ICE and the questions used to obtain that information, which in turn could enable individuals to devises means of undermining or thwarting ICE’s investigative efforts. Id.; see also In re Packaged
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Ice Antitrust Litig., No. 08-1952, 2011 WL 1790189, at *7 (E.D. Mich. May 10, 2011) (agreeing that information “that could reveal the investigators’ interviewing techniques and evaluative process” is properly protected by the law enforcement privilege) (citing In re Micron Tech., Inc. Sec. Litig., 264 F.R.D. 7, 11 (D.D.C. 2010)). For these reasons, the law enforcement privilege applies to the information redacted from ICE’s Sample Questionnaire.
Plaintiffs have not demonstrated a need for the redacted information, much less articulated a reason why the redacted portions of the document should be released. See Pl. Mot. at 7-8. In fact, Plaintiffs’ discussion of the released questions undermines any such assertion. Plaintiffs summarize their argument as “the fact that the government is attempting to extract information about the religious beliefs of travelers is of immense public interest that far outweighs their bald assertion of a law enforcement interest which does not pass even the smell test.” Id. at 8. Defendants have released all of the questions arguably related to religion, Benner Decl. ¶¶ 4-5, accordingly the public interest Plaintiffs’ assert has been met. Defendants have not redacted the portion of the questionnaire that is labeled “Religious Beliefs and Associates,” ICE000001, and includes questions like “What is your priest/minister/imam/rabbi’s name?” id. at ICE000002. Nor did Defendants redact certain questions that may indirectly relate to religion, such as
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“Have you attended any religious schools?” id. at ICE000002; “Do you have any relatives or friends who have been martyred fighting in the defense of your beliefs?” id.; and “Do you plan to visit any church, mosque, temple, conference, or event while in the United States?” id. at ICE000004.5 Plaintiffs have not demonstrated how questions not about religion are relevant to, let alone would support, their equal protection claim that is premised on religious questioning. See Pl. Mot. at 10 (describing “the absolute core of th[eir] case” as “religious questioning”). Thus, on balance, the harm that disclosure risks to ICE’s investigative efforts overwhelms any purported need that Plaintiffs might have to access the information. See In re New York City, 607 F.3d at 948.
B. FBI #2 and FBI #4 1. Documents FBI #2 and FBI #4 Are Properly Protected from Disclosure by the Law Enforcement Privilege.
Plaintiffs also seek to compel the disclosure of two documents, identified on Defendants’ privilege logs as FBI #2 and FBI #4, that FBI withheld in full pursuant to the law enforcement privilege. For the reasons set forth in Defendants’ privilege log and set forth in the FBI’s declaration, which Defendants submitted to the Court
5 The fact that these questions about religion are not specific to any religion undermines Plaintiffs’ claim that this document is a “smoking-gun,” Pl. Mot. at 4.
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for ex parte, in camera review, both FBI #2 and FBI #4 are properly protected from disclosure pursuant to the law enforcement privilege.
As discussed previously, when evaluating an assertion of the law enforcement privilege, the Court should consider several factors, but perhaps most relevant here, the Court “must balance the public interest in nondisclosure against the need of a particular litigant for access to the privileged information.” In re New York City, 607 F.3d at 948 (citation and internal quotation marks omitted). As set forth in Defendants’ Privilege Log of FBI Documents, FBI #2 is an “FBI operational training providing guidance on certain categories of investigations, one portion of which included questions related to religion.” See Pl. Mot. Exh. E. The Log further explains that the document “contains law enforcement sensitive information, the disclosure of which would impede or impair the effectiveness of an investigation and/or an investigative technique, method or procedure; and national security information.” The Log described FBI #4 as “Training attended by CBP Officer Janos during his affiliation with the FBI Task Force (described in response to Interrogatory 9),” and explained that it is a law enforcement sensitive document, the disclosure of which could harm the effectiveness of an investigation or an investigative technique, and “contains personally identifying information about individuals not party to this action.” Defendants also note that Plaintiffs
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deposed Officer Janos and asked him about this training. See Janos Depo. at 22-26 (attached as Exh. B). The submitted FBI declaration explains the harms that would flow from disclosure of these two FBI training documents.
Moreover, Plaintiffs have not demonstrated any need for these documents, let alone explained how they would support their equal protection claim. Officials affiliated with the FBI interviewed only one plaintiff, Plaintiff Cherri, on two occasions. Plaintiffs have not explained how training documents for certain categories of investigations support their equal protection claim that all Muslims are asked religious questions when entering the United States through ports of entry while similarly situated individuals of other religions are not. See Pl. Mot. at 10 (alleging “a pattern, practice, or policy of religious questioning imposed on Muslim travelers”). The fact that FBI officials might allegedly have asked a single plaintiff religious questions during two separate interviews is not sufficient to demonstrate an equal protection violation.
On balance, because the FBI’s declaration explains the harm to its law enforcement efforts that are likely to result from disclosure of these documents, and Plaintiffs do not, indeed cannot, demonstrate a need for these documents, FBI’s assertion of the law enforcement privilege appropriately protects these documents from disclosure.
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2. If the Court Determines that FBI #2 Is Relevant and Is Not Protected from Disclosure by the Law Enforcement Privilege, Defendants Request Additional Time to Consider Whether FBI #2 Is Subject to an Assertion of the State Secrets Privilege.
Plaintiffs seek to compel the disclosure of document FBI #2 which, as indicated in Defendants’ privilege log, contains “national security information.” The national security information at issue in FBI #2 is co-extensive with the FBI’s assertion of the law enforcement privilege. Therefore, if the Court determines that the national security information included in this document is both relevant to Plaintiffs’ equal protection claim and not protected from disclosure by the law enforcement privilege, then Defendants request at least 60 days to consider whether that information is subject to an assertion of the state secrets privilege, which allows the Government to prevent the disclosure of national security information that would otherwise be discoverable in civil litigation where there is a “reasonable danger that compulsion of the evidence will expose [state secrets] which, in the interest of national security, should not be divulged.” United States v. Reynolds, 345 U.S. 1, 10 (1953).
Defendants’ request for additional time in these circumstances is appropriate for several reasons. First, Defendants did not receive notice that Plaintiffs were seeking to compel the disclosure of the national security information included in
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this document until Plaintiffs filed their motion to compel. See L. Civ. R. 7.1(a)(1) (requiring conferral); Pretrial and Scheduling Order for the Hon. Avery Cohn, ¶ 2(b), (Mar. 23, 2012) (requiring the Court’s permission before filing a motion to compel). Second, a decision about whether to assert the state secrets privilege is no ordinary or simple occurrence; rather, it requires a policy judgment at the highest levels of the Government that the disclosure of certain information reasonably could be expected to harm national security. See Reynolds, 345 U.S. at 7-8 (identifying the procedural requirements as (1) a “formal claim of privilege”; (2) “lodged by the head of the department which has control over the matter”; and (3) made “after actual personal consideration by that officer”). Additionally, as a matter of Executive Branch policy, former Attorney General Holder established a rigorous, layered, and careful process for review of a proposed assertion of the state secrets privilege in a civil case. See The Attorney General, U.S. Dep’t of Justice, Policies and Procedures Governing Invocation of the State Secrets Privilege (Sept. 23, 2009). Given the careful and laborious nature of the review process and the significant attention required by high-ranking officials, it can commonly take 60 days or more for a final decision to be made.
Third, the Government should not be required to undertake the rigorous and weighty task of considering an assertion of the state secrets privilege while there
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are other grounds on which the present discovery dispute can be resolved. It is well-established that the state secrets privilege is afforded special significance and is “not to be lightly invoked.” Reynolds, 345 U.S. at 7. The Executive should not be forced into a decision about whether to assert the privilege where, as here, there are other means to avoid the issue entirely. See id. at 11 (criticizing respondents for seeking discovery against the Government that forced a “showdown” on the issue of privilege where the need to do so was “greatly minimized by an available alternative”); cf. Cheney v. U.S. Dist. Court, 542 U.S. 367, 390 (2004) (encouraging courts “whenever possible” to “explore other avenues” to avoid forcing an assertion of Executive privilege that may not be necessary).
II. Defendants Cross-Move for a Protective Order because Plaintiffs’ Notices for Three 30(b)(6) Depositions Are Untimely, Exceed the Number of Depositions Provided for under the Rules, Are Unduly Burdensome, and Are Not Reasonably Calculated to Lead to the Discovery of Admissible Evidence.
Pursuant to Federal Rules 26 and 30, Defendants respectfully request that the Court issue a protective order prohibiting Plaintiffs from pursuing Rule 30(b)(6) depositions of ICE, CBP, and FBI because (1) the deposition notices were untimely; (2) Plaintiffs have already noticed the ten depositions provided for by the Federal Rules; and (3) the breadth of the 30(b)(6) topics creates an undue burden
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on Defendants because the topics are overbroad, irrelevant to the sole remaining issue in the case, and cumulative.
Federal Rule 26(c) confers on the Court broad discretion to issue protective orders for good cause. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (“Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.”).
A. Defendants’ Motion for a Protective Order Should Be Granted because Plaintiffs’ 30(b)(6) Deposition Notices Are Untimely.
At Plaintiffs’ request, the parties extended the close of fact discovery from April 25, 2014 to July 7, 2014. ECF No. 61. Plaintiffs only purported to serve one 30(b)(6) notice of deposition before the close of discovery, and even that was too late. On Thursday, July 3, 2014, Plaintiffs emailed to Defendants’ counsel a 30(b)(6) notice of deposition for the FBI for Monday, July 7, 2014 – there were no business days in between the two dates. This is not “reasonable written notice” as required by Rule 30(b)(1). See Grant Heilman Photography, Inc. v. John Wiley & Sons, Inc., No. 11-cv-1665, 2011 WL 5429005, at *8 (E.D. Pa. Nov. 7, 2011) (granting motion to quash subpoenas because they “did not allow a reasonable time to comply” where they allowed three business days for a response). Plaintiffs did
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not even attempt to serve the notices for the CBP and ICE 30(b)(6) depositions before the close of discovery.
Nor does Plaintiffs’ Motion present any reason why these depositions were not timely noticed. See Equal Emp’t Opportunity Comm’n v. Chrysler LLC, No. 07-12986, 2008 WL 2622948, at *6 (E.D. Mich. July 2, 2008) (“Plaintiff had ample opportunity to obtain the information it seeks by discovery in the action during the discovery period. Plaintiff has made no showing that it acted diligently in seeking these depositions.”). In short, the Court should grant Defendants’ motion for a protective order barring all three depositions because none of the notices was timely.
B. Defendants’ Motion for a Protective Order Should Be Granted because Plaintiffs’ Proposed 30(b)(6) Depositions Would Exceed the Ten Depositions Permitted by the Federal Rules of Civil Procedure.
Pursuant to Rule 30(a)(2), Plaintiffs are limited to 10 depositions without leave of Court. Plaintiffs took 9 depositions during the period of fact discovery, and Defendants agreed that the deposition of ICE Special Agent Matthew Sabo could take place at a later date. Accordingly, Plaintiffs have reached their limit of 10 depositions permitted under Rule 30(a)(2) without leave of the Court. It is Plaintiffs’ burden to show “compelling circumstances or reason” to exceed the 10
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deposition limit. Chrysler, 2008 WL 2622948, at *6. Plaintiffs’ Motion does not satisfy their burden of demonstrating why they need to exceed this limit, or explain why they could not have included their 30(b)(6) depositions within the 10 depositions allowed them under the Federal Rules without leave of Court.
Rule 26(b) also allows the Court to limit the “frequency or extent of discovery otherwise allowed by these rules . . . if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative . . . [or] (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action.” In this instance, both of these factors are met. Plaintiffs have already asked the individual deponents about the topics they seek to cover with Rule 30(b)(6) deponents, have already served four sets of Requests for Production of Documents that largely overlap the noticed topics, and have propounded two sets of interrogatories, which asked questions covering the Rule 30(b)(6) topics as well.
There was nothing precluding Plaintiffs from seeking Rule 30(b)(6) depositions as part of the requisite 10 depositions – they did not need to wait until they had deposed 7 officers who allegedly asked inappropriate religious questions of Plaintiffs. Plaintiffs do not present any argument in support of the alleged need
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for more than 10 depositions. Accordingly, Defendants’ motion for a protective order can be granted on this alternative basis.
C. Defendants’ Motion for a Protective Order Should be Granted because Plaintiffs’ 30(b)(6) Deposition Topics Are Unduly Burdensome, Overbroad, Duplicative, Cumulative and Seek Irrelevant Information.
The scope of discovery is not unlimited. “[D]istrict courts have discretion to limit the scope of discovery where the information sought is overly broad or would prove unduly burdensome to produce.” Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007). There is only one claim remaining in this case, and it is narrow. This case is not a class action. Plaintiffs’ only surviving claim is that they, as Muslim Americans, were asked religious questions when crossing the U.S. border at ports of entry, while other similarly-situated nonMuslims were not asked religious questions. Plaintiffs’ proposed deposition topics are not likely to lead to admissible evidence relevant to this claim. See Phoenix Life Ins. Co. v. Raider-Dennis Agency, Inc., No. 08-1562, 2010 WL 4901181, at *2 (E.D. Mich. Nov. 24, 2010) (striking certain 30(b)(6) deposition topics as “not relevant to the claims or defenses in this matter” even though they “may be relevant and/or related to the broad subject matter of th[e] action”). Plaintiffs’ 33 deposition topics (which will be discussed individually below) are not sufficiently
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focused to survive Defendants’ motion for a protective order. See Berwick v. Hartford Fire Ins. Co., Inc., No. 11-1384, 2012 WL 573939, at *2 (D. Colo. Feb. 21, 2012) (“For Rule 30(b)(6) to function effectively, the requesting party must take care to designate, with painstaking specificity, the particular subject areas that are intended to be questioned, and that are relevant to the issues in dispute. Otherwise, an overly broad Rule 30(b)(6) notice may subject the noticed party to an impossible task.”) (citations and internal quotation marks omitted).
The 30(b)(6) depositions are also cumulative and unduly burdensome in light of the extensive discovery Plaintiffs have already conducted. Plaintiffs have already noticed the 10 depositions to which they are entitled under the rules without leave of the Court (they have taken 9 and Defendants have agreed to make the witness available for a 10th, even though discovery has closed). Plaintiffs have served four sets of Requests for Production of Documents and received approximately 3,500 pages of documents in response. (The third and fourth sets were untimely, but the Court permitted the third set and Defendants agreed to the fourth set.) Plaintiffs propounded two sets of interrogatories, which Defendants answered. (Both sets were untimely, but the Court permitted the first set and Defendants agreed to respond to the second set.) Plaintiffs now propound three 30(b)(6) depositions consisting of 6 broad topics to be addressed by ICE, 14 by
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CBP, and 13 by FBI. Notably, Plaintiffs have refused to alter any of the 33 topics in light of the additional written discovery they have received.6 It would be unduly burdensome to require ICE, CBP and FBI to prepare deponents—possibly even multiple deponents for each agency—in light of the breadth of these topics and their cumulative nature (each topic is discussed separately below). See SEC v. Merkin, 283 F.R.D. 689, 698 n.11 (S.D. Fla. 2012) (noting that “preparing 30(b)(6) witnesses can be burdensome and that selecting and preparing a witness or witnesses will entail significant effort on the part of the [government]”) (citation and internal quotation marks omitted); Smithkline Beecham Corp. v. Apotex Corp., No. 98-3952, 2000 WL 116082, *8-9 (N.D. Ill. Jan. 24, 2000) (“Rule 30(b)(6) imposes a duty upon the named [entity] to prepare its selected deponent to adequately testify not only on matters known by the deponent, but also on subjects that the entity should reasonably know.”) (citations omitted); id. at *10 (finding a 30(b)(6) notice to be “overbroad, unduly burdensome, and an inefficient means through which to obtain otherwise discoverable information”). 7
6 On November 13, 2014, Defendants responded to Plaintiffs’ First Set of Interrogatories and Third Set of Requests for Production of Documents. On March 23, 2015, Defendants responded to Plaintiffs’ Second Set of Interrogatories and Fourth Set of Requests for Production of Documents. 7 Defendants note that the 30(b)(6) notices are also overbroad and unduly burdensome because they are not limited to any time period, even though the
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1. Plaintiffs’ 30(b)(6) Deposition Notice to ICE One ICE employee, Special Agent Matthew Sabo, interviewed one of the Plaintiffs (Plaintiff Charafeddine) on one occasion at one port of entry, and Defendants have agreed to the deposition of Special Agent Sabo, even though discovery is closed. Despite ICE’s limited role and Defendants’ agreement to produce Special Agent Sabo for deposition, Plaintiffs have belatedly served ICE with requests for production of documents, interrogatories, and a 30(b)(6) deposition notice. Defendants have already responded to the requests for documents and the interrogatories. The deposition notice goes far beyond ICE’s limited role in this lawsuit and far beyond what is permitted under the Rules. The 30(b)(6) notice seeks someone to testify about Topic 1: “the ICE questionnaire Agent Sabo used when he interviewed Plaintiff Charafeddine.” Special Agent Sabo will be well qualified to testify about this and Plaintiffs have not articulated any reason a 30(b)(6) deposition is necessary in addition to Special Agent Sabo. A 30(b)(6) deposition on this topic would only be duplicative.
allegations in the complaint only concern events beginning in 2008, the Court only permitted discovery going back 5 years (Telephone Conference of September 23, 2014, p. 36), and the Stipulated Order Limiting the Scope of Plaintiffs’ Third Requests for Production of Documents and First Interrogatories to OfficialCapacity Defendants (Stipulated Order) limited the time period to five years prior to the filing of the discovery requests. ECF No. 83 at 1.
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Topic 2: “The application of the questionnaire at all ports of entry and inside the U.S.,” is overbroad and unduly burdensome. This questionnaire was used to question one Plaintiff on one occasion on November 18, 2008 at the Blue Water Bridge (Port Huron), Michigan – a deposition about its application in an unlimited timeframe, at all ports of entry and inside the United States is far beyond the scope of this lawsuit. ICE would be unduly burdened by having to identify all instances in which the questionnaire has been used and to prepare an individual or individuals to speak about these practices, no matter when or where they occurred.
Topics 3 and 4: “[T]he application of the questionnaire in questioning Muslim Americans about their religious beliefs and practices at all ports of entry and inside the U.S.,” and “ICE practices and procedures in questioning Muslim Americans regarding their religious beliefs and practices at all ports of entry and inside the United States,” are overbroad and unduly burdensome because they are not tailored to Plaintiffs’ claims. These deposition topics are also cumulative because Defendants have already responded to Plaintiffs’ RFPs8 on the same topics: RFP 2 to ICE seeks, “any and all written policies, protocols, practices, and procedures in connection with [] all records of incidents of, religious profiling
8 In this section of the brief citations to “RFPs” are to Plaintiffs’ Third Set of Requests for Production of Documents, unless otherwise indicated.
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and/or religious questioning by ICE at ports of entry;” and RFP 3 seeks: “any and all . . . policies, protocols, practices, and procedures in connection with the questioning of Muslim travelers, including, but not limited to questions about their religious beliefs and practices or questions that elicit responses about their religious beliefs and practices by ICE before allowing them to enter the United States.” It would be unduly burdensome to require ICE to prepare an individual or individuals to discuss all uses of the questionnaire anywhere in the country. For example, requiring ICE to address its practices and procedures in questioning Muslims could implicate ICE’s role in determining whether individuals are victims of religious persecution, a topic unrelated to the case before this Court. It would also be unduly burdensome, if not impossible, to require ICE to identify all instances in which they questioned individuals who are Muslim. Moreover, the questioning of Muslims, with or without the questionnaire, will not shed light on the only remaining issue – whether other similarly-situated non-Muslims were asked religious questions.
Topic 5 is “Training and educational materials provided to ICE agents.” The overbreadth and burdensome nature of this topic is apparent on its face – there is no plausible reason why any and all training ICE provides to its agents would be related to the one-time questioning of a Muslim American at a port of entry. The
26

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Court can take judicial notice that employees are always trained on a wide array of topics starting with simple administrative tasks. Furthermore, Plaintiffs can depose Special Agent Sabo as to all of his training, as they have for all other officials they have deposed. This is more than sufficient to elicit the evidence relevant to the issue of whether Plaintiffs were asked religious questions when crossing the U.S. border at ports of entry, while other similarly-situated non-Muslims were not asked religious questions. Furthermore, Plaintiffs have already sought this information in the form of documents. Specifically Plaintiffs’ RFP 5 sought “educational materials, and training materials of ICE personnel” about, inter alia, Islam or Muslims and religious questioning at ports of entry, thus duplicating Topic 5 of the 30(b)(6) deposition notice.
Plaintiffs’ final topic to ICE is a catch-all: Topic 6: “Other ICE Policies relevant to Plaintiffs’ claims in this lawsuit.” It is unduly burdensome to ask ICE to prepare a deponent on all of its policies in the event that Plaintiffs consider it relevant to “claims” in this lawsuit. On its face this topic fails to comply with the requirement of Rule 30(b)(6) that Plaintiff “must describe with reasonable particularity the matters for examination.” See Tri-State Hosp. Supply Corp. v. United States, 226 F.R.D. 118, 125 (D.D.C. 2005) (notices are overbroad if they include the phrase “including but not limited to”).
27

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In sum, Plaintiffs cannot justify a 30(b)(6) deposition of ICE for multiple reasons: Only one Plaintiff was interviewed on a single occasion by one ICE agent, which belies the alleged need for Plaintiffs to take a 30(b)(6) deposition of ICE regarding broad topics touching upon agency-wide practices; Plaintiffs can depose Special Agent Sabo (who conducted that single interview of Plaintiff Charafeddine) about the topics set forth in their 30(b)(6) notice, as well as more relevant details about that Special Agent Sabo’s questioning of Plaintiff Charafeddine; Plaintiffs do not explain why ICE’s response to their interrogatories and requests for documents do not satisfactorily respond to their questions regarding the 30(b)(6) topics; the topics are not limited in geographic or temporal scope; and this is not a class action, which might possibly justify the broadreaching discovery that Plaintiffs seek. The topics Plaintiffs’ propose do not seek testimony about the treatment of Plaintiffs as compared to similarly situated nonMuslims, thus they are not designed to elicit testimony relevant to the only remaining claim in this case. See In re Domestic Drywall Antitrust Litig., 300 F.R.D. 234, 251-52 (E.D. Pa. 2014); see, e.g., Ebert v. C.R. Bard, Inc., No. 1:13MC-277, 2014 WL 1365889, at *2-3 (M.D. Pa. Apr. 7, 2014) (quashing subpoena on conclusion that it imposed an undue burden because, among other factors, it
28

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sought irrelevant information). For these reasons, Defendants’ motion for a protective order should be granted.
2. Plaintiffs’ 30(b)(6) Deposition Notice to CBP Plaintiffs seek testimony on 14 topics from CBP. Defendants are moving for a protective order on the grounds that the notice to CBP is cumulative and unduly burdensome because Plaintiffs deposed Director of Field Operations (DFO) Christopher Perry (a senior CBP official in charge of the United States ports of entry in the state of Michigan, who also verified CBP’s responses to Plaintiffs’ First Set of Interrogatories) and questioned him extensively about policies and practices pertaining to religious questioning (see, e.g., Perry Depo. at 18-20, 27-29, 32, 39, 56-60, 63, 66-67, 70, 74, attached as Exh. C), and because Defendants offered to stipulate to have the relevant parts of DFO Perry’s deposition designated as CBP’s 30(b)(6) testimony. TR at 8-9, 11;9 see Richardson v. Rock City Mech. Co., LLC, No. 3:09-92, 2010 WL 711830 (M.D. Tenn. Feb. 24, 2010) (holding that discovery can be precluded if it is unreasonably cumulative or duplicative, especially if prior deposition testimony covered the same inquiries or the party agrees to stipulate to prior testimony as 30(b)(6) testimony). In addition to DFO
9 In this motion, citations to TR are to the transcript of the Telephone Conference held by the Court on September 23, 2014 (ECF No. 82), attached as Exhibit D, at the page indicated.
29

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Perry’s testimony, Plaintiffs asked each of the 7 other CBP officers they deposed about applicable CBP policies, procedures and practices, so this deposition would be duplicative. See, e.g., Winkel Depo. at 19 (attached as Exh. E); Schultz Depo. at 11 (attached as Exh. F); Morin Depo. at 17-18 (asking if the agent is aware of any policy that prevents him from asking questions about religious beliefs/practices) (attached as Exh. G). For these reasons, CBP is entitled to a protective order as to all topics in Plaintiffs’ Notice to CBP. Nonetheless, Defendants will address why CBP is entitled to a protective order as to each of the topics separately:
As with the notice to ICE, the final catch-all Topic 14: “All CBP Policies relevant to Plaintiffs’ claims in this lawsuit,” fails to comply with the requirement of Rule 30(b)(6) itself that a notice “must describe with reasonable particularity the matters for examination.” Topics 11, 12, and 1310 all concern an FBI task force, so they are not properly directed to CBP.
10 “(11) Taskforce policies, practices and procedures pertaining to questioning Muslim Americans regarding their religious beliefs and practices at all ports of entry and inside the United States. (The Taskforce is the entity that includes Customs and Border Protection, the FBI and other government agencies testified to in the Deposition of Joseph Janos.); (12) Training and educational materials provided to CBP officers and members of the Taskforce regarding Islam and Muslims; (13) Training and educational materials provided to CBP officers and members of the Taskforce regarding religious questioning.”
30

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Topic 3 seeks testimony about “[t]he April 26, 2013 DHS Memorandum to Component heads pertaining to racial and ethnic profiling,” which is not likely to lead to the discovery of admissible evidence because this case does not concern racial or ethnic profiling—Plaintiffs allege only religious profiling and questioning—and because it post-dates the facts underlying Plaintiffs’ claims and the complaint. The only remaining issue is an equal protection claim based on religious questioning.
Topic 6 seeks testimony on (as characterized by Plaintiffs) “[t]he reasons why CBP offered, made available, and/or paid for training that directed CBP agents to distinguish between ‘traditional’ Muslims and ‘devout’ Muslims based on how Muslim travelers cover their hair (see Deposition of Officer Miller).” CBP seeks a protective order from this topic for several reasons. First, why CBP made a decision on particular training is protected by the deliberative process. (This Court recognized this limitation in eliminating a document request. See TR at 31-32.) Second, Plaintiffs have already deposed Officer Miller and asked her in detail about this training. See Miller Depo. at 10-20 (attached as Exh. H). Third,
31

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Plaintiffs have already received the relevant documents in response to the supplemental written discovery they were permitted to serve.11
Plaintiffs’ 30(b)(6) notice to CBP also includes two topics that are beyond the scope of this litigation: Topic 7 seeks testimony about “[t]he methods [sic] CBP collects information regarding the number of times a person prays and/or whether Muslims perform their dawn prayer at the mosque;” and Topic 8 seeks testimony about “[w]hat CBP does with information obtained about the religious beliefs and practices of Muslims that it collects.” Both topics contain assumptions about CBP’s retention and use of the information, even though there is no basis for such assumptions. Topic 7 seems to ask about CBP’s “methods,” which could implicate law enforcement privilege. Again, this case is limited to an equal protection claim regarding religious questioning, so what CBP may or may not do with the information it collects is irrelevant and not likely to lead to the discovery of admissible evidence.
The remaining six topics are overbroad and unduly burdensome, overlap each other, and duplicate previous discovery:
11 See Interrogatory No. 9: “For each training identified by any deponent, identify the title of the training, when it occurred, who conducted the training, how many CBP employees attended it, and the purpose of the training.” In this cross-motion, citations to interrogatories are to Plaintiffs’ First Set of Interrogatories, unless otherwise stated.
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Topic 1. CBP policies, practices and procedures pertaining to religious profiling of travelers at ports of entry;
Topic 2. CBP policies, practices and procedures pertaining to religious questioning of travelers at ports of entry;
Topic 4. All CBP programs which incorporate, rely upon, or include religious profiling in any manner;
Topic 5. All CBP programs, practices, and/or policies that authorize CBP agents to make law enforcement decisions that rely upon, in whole or in part, the religious identities of any persons;
Topic 9. The application of relevant CBP policies pertaining to questioning Muslim Americans regarding their religious beliefs and practices at all ports of entry;
Topic 10. CBP practices and procedures pertaining to questioning Muslim Americans regarding their religious beliefs and practices at all ports of entry and inside the United States.
This Court has made clear that this case is not about activity generally “inside the
United States,” but is limited to activity related to border crossings. TR at 24.
Accordingly, CBP is entitled to a protective order as to the breadth of these topics.12 This case should also be limited geographically to the Detroit, Michigan
area – Defendants have consistently responded to Plaintiffs’ discovery only as to
the Port of Detroit (which includes the Ambassador Bridge and the Detroit-Canada
12 The Stipulated Order defined the scope as “documents and information relating to questioning of international travelers at ports of entry about their religious practices and beliefs.” ECF No. 83 at 2.
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Tunnel), the Port of Detroit Metropolitan Wayne County Airport, and the Port of Port Huron, explaining that this includes all local and nationwide policies, protocols, practices, and procedures that apply in these ports. See Parrottino v. Bankers Life & Cas. Co., No. 12-13084, 2014 WL 1516195 (E.D. Mich. Apr. 17, 2014) (limiting 30(b)(6) deposition topics to Michigan-only activity). Plaintiffs have not objected to this limitation.
Topics 1 and 4 are overbroad and unduly burdensome because they seek testimony about any religious profiling, although this lawsuit is about religious questioning. Similarly, Topic 5, which seeks testimony about all law enforcement decisions, is overbroad and unduly burdensome. See Bearden v. Honeywell Int’l, Inc., No. 3:09-1035, 2011 WL 2600575 (M.D. Tenn. June 29, 2011) (finding that 30(b)(6) deposition topics about “all” communications, policies and practices to be “unduly broad and unlimited” in light of the more narrow topics listed.). When limited in time and to ports of entry in the Detroit area, Topics 2, 9 and 10 may appear to be pertinent to the litigation, but they are unduly burdensome because CBP has already responded to discovery on these same topics. For example, Plaintiffs’ First Request for the Production of documents served on CBP sought, inter alia:
34

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7. A complete copy of any and all written policies, protocols, practices, and procedures in connection with, in addition to all records of incidents of, religious profiling and/or religious questioning by CBP at ports of entry. . . .
9. A complete copy of any and all documents . . . in connection with secondary screening of travelers, that contain the words “Islam,” “Muslim,” “mosque(s),” “masjid(s),” “Qur’an,” “Koran,” “Fajr,” “morning prayer,” “Imam,” or any other Islamic term, from January 1, 2008 until the present.
10. A complete copy of any and all documents . . . pertaining to employee handbooks, educational materials, and training materials of CBP personnel in connection with (1) Islam or Muslims; (2) religious profiling at ports of entry; (3) religious questioning at ports of entry; (4) the selection and/or referral of Muslim travelers for additional questioning by CBP; and (5) the questioning of Muslim travelers . . . about their religious beliefs and practices . . . by CBP before allowing them to enter the United States . . . .
In addition, Plaintiffs already deposed 8 CBP officials about Plaintiffs’ border
crossings and all related policies and practices. Thus, Plaintiffs already have the
information they seek.
3. Plaintiffs’ 30(b)(6) Deposition Notice to FBI
The role of the FBI in the events underlying this litigation was very limited
(as was the role of ICE, discussed above). There is only one interview of Plaintiff
Cherri at the border by one individual affiliated with an FBI Task Force, namely
CBP Officer Joseph Janos—who, at the time of that interview, was assigned to an
FBI Task Force—and one interview of Plaintiff Cherri at his home by FBI Special
Agents Thompson and Sokolowski, subsequent to that border crossing. Plaintiffs
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deposed Officer Janos, and served interrogatories and document requests concerning Officer Janos and Special Agents Thompson and Sokolowski. The 30(b)(6) deposition would as a result be cumulative and unduly burdensome. Defendants are seeking a protective order from all topics in the deposition notice addressed to the FBI for numerous reasons:
Starting again with the final, catch-all category, Topic 13 (“Other FBI Policies relevant to Plaintiffs’ claims in this lawsuit”) fails to “describe with reasonable particularity the matters for examination” as required by Rule 30(b)(6).
A number of topics single out one document, the FBI’s Domestic Investigation and Operations Guide (DIOG), which governs the FBI and the Task Force: Topic 1 (“The [DIOG] produced by Defendants”); Topic 7 (“The application of the [DIOG] at all ports of entry and inside the United States); and Topic 8 (“The application of the [DIOG] in questioning Muslim Americans regarding their religious beliefs and practices at all ports of entry and inside the United States.”). In addition Topic 6 (“All FBI programs, practices, and/or policies that authorize FBI agents to make law enforcement decisions that rely upon, in whole or in part, the religious identities of any persons”), when propounded as an interrogatory elicited the response of the DIOG. A 30(b)(6) deposition on the DIOG would only be duplicative and cumulative of Plaintiffs’
36

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previous discovery because (1) the FBI has offered to stipulate that the DIOG applied at “all of the times for Plaintiffs’ allegations, that the DIOG applies to the FBI domestically and at the border, that the DIOG does not prohibit FBI agents from asking religious questions, and that the FBI DIOG applies to all faith backgrounds,” TR at 9; (2) the FBI has identified the DIOG in response to Plaintiffs’ numerous inquiries about the policies that apply to religious questioning;13 and (3) Officer Janos testified that he is not aware of “any task force policy that prevents [him] from asking travelers regarding their religious faith.” Janos Depo. at 55.
Similarly, Topics 9 and 10 seek testimony about FBI and Task Force policies, practices and procedures in questioning Muslim Americans regarding their religious beliefs and practices. The FBI is seeking a protective order from these topics because it has already addressed them in response to interrogatories (e.g. Interrogatory No. 8: “Identify all CBP, FBI and Taskforce written policies,
13 For example, Interrogatory No. 5 asked Defendants to “Identify all restrictions on the ability of CBP, FBI, and/or Taskforce agents to ask questions about the religious beliefs of Muslim travelers;” RFP No. 1 sought “All documents that regard CBP, FBI and/or the Taskforce’s authority to utilize religion as a basis, in whole or in part, for any law enforcement decision;” and RFP No. 8 sought: “A complete copy of any and all CBP, FBI and Taskforce written policies, protocols, practices, procedures, guidelines and manuals pertaining to religion and/or the religious questioning of travelers referred to secondary screening at ports of entry.”
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protocols, practices, procedures, guidelines and manuals pertaining to religion and/or religious questioning domestically. . . .”) and document requests (e.g., RFP No. 10: “A complete copy of any and all CBP, FBI and Taskforce written policies, protocols, practices, procedures, guidelines and manuals pertaining to religion and/or religious questioning domestically. . . . ”). As the FBI has told the Plaintiffs in their proffered stipulation, the short answer is that no such policy or procedure exists. Plaintiffs’ motion to compel does not set forth any basis for this overbroad, cumulative, duplicative, and burdensome discovery. See Fed. R. Civ. P. 26(b)(2)(C)(i) and (iii).
Topics 2 and 3, which seek testimony about “[w]hether the FBI believes it has the authority to engage in religious profiling,” and “[w]hether the FBI believes it has the authority to engage in religious questioning,” are not appropriate topics for a 30(b)(6) deposition. The FBI’s “belief” is not relevant. These topics are really asking about a legal question, a legal question which is not relevant to the equal protection challenge that remains in the lawsuit. Cf. ACLU v. FBI, 734 F.3d 460 (6th Cir. 2013).
Topics 11 and 12 ask for testimony regarding training materials provided to FBI agents and members of the Task Force about religious questioning, Islam and Muslims. These requests are overbroad and unduly burdensome in light of the fact
38

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that Defendants already addressed these topics in written discovery, both in response to interrogatories (e.g., Interrogatory No. 1: “Identify all CBP, FBI, and/or Taskforce trainings—either conducted, authorized, or facilitated by the agencies—that regarded Islam or Muslims, during the past five years to the present.”) and document requests (e.g., RFP 2: “All documents that regard any CBP, FBI and/or Taskforce training that regarded Islam or Muslims in the last five years.”). In addition Plaintiffs already deposed Officer Janos and asked him about his training. See, e.g., Janos Depo. at 8, 11, 20-22. The FBI should be granted a protective order from cumulative discovery about trainings. See Rule 26(b)(2)(C) (“[T]he court must limit the frequency or extent of discovery . . . if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative . . . or (iii) the burden or expense of the proposed discovery outweighs its likely benefit.”).
Defendants seek a protective order from Topics 4 and 5 because they are not “reasonably calculated to lead to the discovery of admissible evidence.” Rule 26(b)(1). Topic 4 seeks testimony about “[a]ll FBI programs which incorporate, rely upon, or include religious profiling in any manner.” This litigation is not about religious profiling or any FBI programs, accordingly, Topic 4 is overbroad on its face and is not “discovery of any matter relevant to the subject matter involved in the litigation.” Fed. R. Civ. P. 26(b)(1). Topic 5 asks for testimony
39

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about “[t]he effect of the training materials that regarded Muslims and Islam that the FBI and/or Department of Justice identified as discriminatory, inflammatory, and/or otherwise improper.” Again, this topic is not relevant to the equal protection claim before this Court, indeed, it reads like a fishing expedition for other litigation or areas of interest to the Council on American-Islamic Relations, which represents Plaintiffs. Cf. Mycogen Plant Sci., Inc. v. Monsanto Co., 164 F.R.D. 623, 627 n.9 (E.D. Pa. 1996) (“‘[I]f the sought-after documents are not relevant . . . then any burden whatsoever imposed . . . would be by definition ‘undue’.’” (quoting Compaq Computer Corp. v. Packard Bell Elecs., Inc., 163 F.R.D. 329, 335-36 (N.D. Cal. 1995)).
For the reasons set forth above, including the FBI’s proffer of a stipulation, the FBI’s responses to document requests, the FBI’s responses to interrogatories, and the deposition of Officer Janos, the Court should enter an order protecting the FBI from having to appear at a Rule 30(b)(6) deposition to address the wideranging and irrelevant topics that Plaintiffs have propounded.
CONCLUSION For the foregoing reasons, Plaintiffs’ Motion to Compel Discovery should be denied, and Defendants’ Cross-Motion for a Protective Order should be granted.
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Dated: April 28, 2015

Respectfully submitted,

BENJAMIN C. MIZER Principal Deputy Assistant Attorney General Civil Division

BARBARA L. MCQUADE United States Attorney

JOHN TYLER Assistant Branch Director Federal Programs Branch

_/s/ Joseph C. Folio III_____________

SUSAN ULLMAN

Senior Counsel

JOSEPH C. FOLIO III (MD Bar)

Trial Attorney

U.S. Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Avenue, N.W.

Washington, D.C. 20001

TELEPHONE: (202) 305-4968

FAX:

(202) 616-8460

E-MAIL:

Joseph.Folio@usdoj.gov

ATTORNEYS FOR THE DEFENDANTS

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2:12-cv-11656-AC-LJM Doc # 90 Filed 04/28/15 Pg 46 of 46 Pg ID 1059

CERTIFICATE OF SERVICE

I certify that I electronically filed the foregoing with the Clerk of Court

using the CM/ECF system, which will send a notification of such filing (NEF) to

the following counsel of record:

Shereef H. Akeel Syed H. Akbar Akeel & Valentine, PLLC 888 W. Big Beaver Rd., Ste. 910 Troy, MI 48084 shereef@akeelvalentine.com

Lena F. Masri Council on American-Islamic Relations
21700 Northwestern Hwy, Ste. 815 Southfield, MI 48075 lmasri@cair.com

Gadeir I. Abbas The Law Office of Gadeir Abbas
1155 F Street NW, Suite 1050 Washington, DC 20004 gadeir.abbas@gmail.com

DATED: April 28, 2015

_/s/ Joseph C. Folio III____________________

JOSEPH C. FOLIO III (MD Bar)

Trial Attorney

U.S. Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Avenue, N.W.

Washington, D.C. 20001

TELEPHONE: (202) 305-4968

E-MAIL:

Joseph.Folio@usdoj.gov

42

 
 2:12-cv-11656-AC-LJM Doc # 89-1 Filed 04/28/15 Pg 1 of 12 Pg ID 924

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ABDULRAHMAN CHERRI, et al.,

No. 2:12-cv-11656

Plaintiffs, v. JAMES B. COMEY, JR., et al.,

District Judge: AVERN COHN
Magistrate Judge: UNA

Defendants.

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO COMPEL DISCOVERY AND DEFENDANTS’ CROSS-MOTION FOR A PROTECTIVE ORDER
Exhibit A Declaration of Derek N. Benner

2:12-cv-11656-AC-LJM Doc # 89-1 Filed 04/28/15 Pg 2 of 12 Pg ID 925

IN THE UN ITED STATES DISTRICT C OU RT FOR T HE EAST ERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ABDULRAHMAN CHERRI, et al. ,
Pl a inti ffs
V.
ROBERT S. MULLE R, III, Director, Federal Bureau of Investigation, et a l. ,
D efe n d a n t s .

) ) ) ) ) ) Civil number: 2:1 2-cv-11 656 ) ) ) ) ) )

DECLARATION OF DEREK N. BENNER

I, Derek Benner, state as fo llows:

I.

I am the Deputy Executive Associate Director, Homeland Security

Investigations (HSI) fo r U.S. Immigrati on and Customs Enfo rcement (ICE), a bureau in the

Department of Homeland Securi ty. As the Deputy Executi ve Assoc iate Director, I am the

second-highest ranking officia l within ICE HSI.

2.

Follow ing the enactment of the Homeland Security Act of2 002, ICE was

created from elements of severa l legacy agencies, includi ng the criminal investigations staffs of

the former U.S . Customs Service (USCS) and the fo rmer Immigration and Natura lization Service

(INS). As a result, a ll Specia l Agents who formerly worked fo r the USCS and the INS became a

part of ICE. ICE is the second largest investigati ve agency in the Federal Government. HSI has

more than 9,067 empl oyees, including over 6,500 Special Agents assigned to twenty-six (26)

Special Agent-in-Charge offices in maj or cities and 178 other field offi ces and Headquarters.

2:12-cv-11656-AC-LJM Doc # 89-1 Filed 04/28/15 Pg 3 of 12 Pg ID 926

Additionally, HSI deploys Special Agents to 67 offices and 8 Department of Defense Liaisons in

46 countries, who conduct multi-faceted, international law enforcement operations and partnering

with fore ign and domestic counterparts to combat criminal organizations and prevent terrori st

activities that threaten our national security. Special Agents have a wide array of responsibilities

relating to the investi gation of criminal activity, which in addition to investigating violations of

the country's immigration laws, includes the in vestigation of contraband and merchandise

smuggling, fraud in both import and export transactions, criminal finance and money laundering,

alien smuggling and human traffickin g, cybercrimes, and infringements upon intellectual property

rights. ICE's mission is to uphold public safety and protect the United States from terrorist

attacks by investigating and interdicting the people, money, and materials that support terrorist

and criminal activity. ICE has important roles in securing the nation's borders, and in ensuring

economic, transportation, and infrastructure security.

..,
.) .

As the Deputy Executive Associate Director, HSI, I oversee and supervise

ICE investi gative and enforcement activities, nati onally and internationally, at Headquarters and

at 26 Special Agent in Charge offices throughout the United States. I manage a mission that has

responsibility for investigating a range of issues relating to the enforce ment of both imp01i and

export transactions, criminal fi nance, smuggling, fraud , ali en trafficking, fa lse and fraudu lent

entry documents, cybercrimes, intellectual property rights, et al. I also supervise the ICE mi ssion

involving the enforcement of over 400 laws, in addition to the customs and immigration laws, on

behalf of more than 40 federal agencies, including Jaws relating to transportation in interstate or

foreign commerce, and the possession of material containing child pornography. To accomplish

the ICE mission, more than 5700 Special Agents conduct investigations of alleged violations of

customs and immigration laws and other laws enforced by ICE. This requires using a variety of

Cf}; 2

2:12-cv-11656-AC-LJM Doc # 89-1 Filed 04/28/15 Pg 4 of 12 Pg ID 927

techniques and methods, including the use of confidenti al informants, as well as differing styles

of investigations, including undercover operations. It also entails the arrest and detention of

persons, the appropriate use of force, and the exercise of search and seizure authority.

4.

I submit this declaration to explain ICE's assertions of privilege over certain

information contai ned in a document that ICE identified as responsive to plaintiffs' discovery

requests. The redacted version of that document that was produced to plaintiffs, which says

"Sample Questionnaire" at the top and is labeled at the bottom as ICEOOOOOI-ICEOOOOOS, is

attached hereto as Exhibit A. ICE determined that the portions of the document that were relevant

to plaintiffs' discovery requests cou ld be disclosed, however, ICE also determined that the

remainder of the document could not be disclosed, and it was therefore redacted, because it is

privileged. Based upon my personal review of the documents described above, I am formally

asserting the law enforcement privilege over the redacted information. In support of this assertion

I make the following statements.

5. The Sample Questionnaire is designed to provide guidance to special agents who are

called upon to conduct a certain type of investigatory interview of persons. Although ICE expects

that its interviewing agents will use their own knowledge and experi ence to formulate questions

throughout the course of the interview in add ition to or that are different from those listed in the

questionnaire, the Sample Questionnaire nonetheless provides a roadmap about the types of

information that is of interest to ICE and the types of questions used to obtain that information.

For these reasons, the questionnaire is restricted as "official use only" and is "law enforcement

sensitive." Despite the restricted use and dissemination of thi s document, however, ICE

determined that discrete parts of the Sample Questionnaire that relate to plaintiffs' discovery

requests about religious questioning could be di sclosed without compromising the sensitive nature

~3

2:12-cv-11656-AC-LJM Doc # 89-1 Filed 04/28/15 Pg 5 of 12 Pg ID 928
of the document. Thus, in order to protect the integrity of the enti re document, ICE disclosed to plaintiffs' the relevant questions and redacted the remainder.
6. The disclosure of the remainder of the Sample Questionnai re risks significant harm to ICE's ongoing law enforcement efforts because it would reveal the to tali ty of the specific interview guidance and teclmiques prov ided to ICE special agents to conduct certain types of interviews. The disclosure of this information would allow ind ividuals to anticipate the questions that ICE special agents might ask in these types of interviews, and to prepare answers intended to mislead or otherwise manipul ate ICE special agents. Although an individual who is interviewed by an ICE special agent that uses these interview techniques might remember certain questions asked, disclosure of the entire document verbatim wou ld leave no doubt about the types of information sought and the types of questions that wi ll be asked during the investigation. Thus, di sclosure of this in formation not only ri sks undermining ICE's use of the Sample Questionnaire as a law enforcement technique, but also risks compromising ICE investigations in which the questionnaire is used. Add itionally, disclosure of the entire Sample Questionnaire also tends to reveal the purpose and investigative reasons for the interviews in which the Questionnaire was used. For example, if an ICE special agent uses these interview techniques in one interview but not in another, then those individuals may be able to determine the different types of investigations conducted by ICE if the Sample Questionnaire became public. Information that reveals the precise nature of an ICE investigation risks undermi ning that investigation because, once aware of the purpose of an investigation, the target of the investigation or indi viduals associated with the inves tigation (e.g., an associate of the target or a person with information relevant to the investigation) could then take steps to thwart the in vestigation by altering their behavior or otherwise taking steps to conceal or undermine the investigation. For these reasons, I
~4

2:12-cv-11656-AC-LJM Doc # 89-1 Filed 04/28/15 Pg 6 of 12 Pg ID 929

have assessed that disclosure of the remainder of the Sample Questionnaire risks compromisi ng an investigative technique currently used by ICE, which in turn ri sks compromising past, current, and future ICE investigations. Therefore, I have determined that the redacted in formation is properly protected by the law enforcement privilege.
Pursuant to 28 U.S.C. §1746, Tdeclare under penalty of pe1jury that the foregoing is true and correct.

J 8~ay Executed this

of April 2015.

D~
Deputy Executive Assoc iate Director, Homeland Security Investigations U.S. Immi gration and Customs Enforcement

5

2:12-cv-11656-AC-LJM Doc # 89-1 Filed 04/28/15 Pg 7 of 12 Pg ID 930
Exhibit A

2:12-cv-11656-AC-LJM Doc # 89-1 Filed 04/28/15 Pg 8 of 12 Pg ID 931
ICE000001

2:12-cv-11656-AC-LJM Doc # 89-1 Filed 04/28/15 Pg 9 of 12 Pg ID 932
ICE000002

2:12-cv-11656-AC-LJM Doc # 89-1 Filed 04/28/15 Pg 10 of 12 Pg ID 933
ICE000003

2:12-cv-11656-AC-LJM Doc # 89-1 Filed 04/28/15 Pg 11 of 12 Pg ID 934
ICE000004

2:12-cv-11656-AC-LJM Doc # 89-1 Filed 04/28/15 Pg 12 of 12 Pg ID 935
ICE000005

 
 Case: 2:12-cv-11656 As of: 11/11/2017 06:38 PM EST 1 of 12
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:12−cv−11656−AC−LJM

Cherri et al v. Mueller, III et al Assigned to: District Judge Avern Cohn Referred to: Magistrate Judge Laurie J. Michelson Cause: 28:1331 Federal Question: Bivens Act
Plaintiff

Date Filed: 04/12/2012 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Abdulrahman Cherri

represented by Gadeir I. Abbas The Law Office of Gadeir Abbas 1155 F Street NW Suite 1050 Washington, DC 20004 720−251−0425 Fax: 720−251−0425 Email: gadeir.abbas@gmail.com ATTORNEY TO BE NOTICED

Jennifer E. Nimer CAIR−Ohio 1505 Bethel Road Suite 200 Columbus, OH 43220 614−451−3232 Fax: 614−451−3222 Email: jnimer@cair.com ATTORNEY TO BE NOTICED

Munia Farhana Jabbar Council on American−Islamic Relations 453 New Jersey Ave. SE Washington, DC 20003 202−646−6033 Fax: 202−488−0833 Email: mjabbar@cair.com TERMINATED: 05/19/2014 ATTORNEY TO BE NOTICED

Shereef H. Akeel Akeel & Valentine 888 W. Big Beaver Suite 910 Troy, MI 48084 248−269−9595 Fax: 248−269−9119 Email: shereef@akeelvalentine.com ATTORNEY TO BE NOTICED

Lena F Masri CAIR 453 New Jersey Avenue, SE Washington, DC, DC 20003 202−488−8787 Fax: 202−488−0833 Email: lmasri@cair.com ATTORNEY TO BE NOTICED

Plaintiff Wissam Charafeddine

represented by Gadeir I. Abbas (See above for address) ATTORNEY TO BE NOTICED

Case: 2:12-cv-11656 As of: 11/11/2017 06:38 PM EST 2 of 12

Plaintiff Ali Suleiman Ali
Plaintiff Kheireddine Bouzid

Jennifer E. Nimer (See above for address) ATTORNEY TO BE NOTICED
Munia Farhana Jabbar (See above for address) TERMINATED: 05/19/2014 ATTORNEY TO BE NOTICED
Shereef H. Akeel (See above for address) ATTORNEY TO BE NOTICED
Lena F Masri (See above for address) ATTORNEY TO BE NOTICED
represented by Gadeir I. Abbas (See above for address) ATTORNEY TO BE NOTICED
Jennifer E. Nimer (See above for address) ATTORNEY TO BE NOTICED
Munia Farhana Jabbar (See above for address) TERMINATED: 05/19/2014 ATTORNEY TO BE NOTICED
Shereef H. Akeel (See above for address) ATTORNEY TO BE NOTICED
Lena F Masri (See above for address) ATTORNEY TO BE NOTICED
represented by Gadeir I. Abbas (See above for address) ATTORNEY TO BE NOTICED
Jennifer E. Nimer (See above for address) ATTORNEY TO BE NOTICED
Munia Farhana Jabbar (See above for address) TERMINATED: 05/19/2014 ATTORNEY TO BE NOTICED
Shereef H. Akeel (See above for address) ATTORNEY TO BE NOTICED
Lena F Masri (See above for address) ATTORNEY TO BE NOTICED

Case: 2:12-cv-11656 As of: 11/11/2017 06:38 PM EST 3 of 12

V. Defendant Robert S Mueller, III

represented by Jonathan G. Cooper U.S. Department of Justice Civl Divsion 20 Massachusetts Avenue, NW Washington, DC 20001 202−305−7697 Fax: 202−616−8470 Email: jonathan.g.cooper@usdoj.gov (Inactive) ATTORNEY TO BE NOTICED
Joseph C. Folio , III U.S. Department of Justice Civil Divison, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20001 202−305−4968 Fax: 202−616−8470 Email: Joseph.Folio@usdoj.gov ATTORNEY TO BE NOTICED
Judson O. Littleton U.S.Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20001 202−305−8714 Fax: 202−616−8470 TERMINATED: 08/02/2013 ATTORNEY TO BE NOTICED
Nathan M. Swinton U. S. Department of Justice − Civil Division Federal Programs Branch 20 Massachusetts Ave, NW Washington, DC 20530 202−514−4505 Fax: 202−616−8470 Email: Nathan.M.Swinton@usdoj.gov ATTORNEY TO BE NOTICED
Patrick Nemeroff U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 202−305−8727 Fax: 202−616−8470 Email: patrick.g.nemeroff@usdoj.gov TERMINATED: 09/17/2013 ATTORNEY TO BE NOTICED
Susan K. Ullman U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massadchusetts Avenue, N.W. Washington, DC 20001 202−616−0680 Fax: 202−616−8470 Email: susan.ullman@usdoj.gov

Case: 2:12-cv-11656 As of: 11/11/2017 06:38 PM EST 4 of 12

ATTORNEY TO BE NOTICED

Defendant
Michael Jerome Fisher TERMINATED: 03/19/2013

represented by Patrick Nemeroff (See above for address) TERMINATED: 09/17/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judson O. Littleton (See above for address) TERMINATED: 08/02/2013 ATTORNEY TO BE NOTICED

Nathan M. Swinton (See above for address) ATTORNEY TO BE NOTICED

Defendant
John S Pistole TERMINATED: 03/19/2013

represented by Patrick Nemeroff (See above for address) TERMINATED: 09/17/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judson O. Littleton (See above for address) TERMINATED: 08/02/2013 ATTORNEY TO BE NOTICED

Nathan M. Swinton (See above for address) ATTORNEY TO BE NOTICED

Defendant
Robert B Thompson TERMINATED: 08/14/2013

represented by Brant Levine U.S. Department of Justice Civil Division, Torts Branch P.O. Box 7146 Ben Franklin Station Washington, DC 20044 202−616−4373 Fax: 202−616−4314 Email: brant.levine@usdoj.gov ATTORNEY TO BE NOTICED

Nathan M. Swinton (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jeff Sokolowski TERMINATED: 08/14/2013

represented by Brant Levine (See above for address) ATTORNEY TO BE NOTICED

Nathan M. Swinton (See above for address) ATTORNEY TO BE NOTICED

Defendant Unidentified FBI Agents

represented by Nathan M. Swinton (See above for address)

Case: 2:12-cv-11656 As of: 11/11/2017 06:38 PM EST 5 of 12

ATTORNEY TO BE NOTICED

Defendant Unidentified CBP Agents

represented by Nathan M. Swinton (See above for address) ATTORNEY TO BE NOTICED

Defendant Unidentified TSA Agents

represented by Nathan M. Swinton (See above for address) ATTORNEY TO BE NOTICED

Defendant DHS Janet Napolitano

represented by Jonathan G. Cooper (See above for address) ATTORNEY TO BE NOTICED

Joseph C. Folio , III (See above for address) ATTORNEY TO BE NOTICED

Judson O. Littleton (See above for address) TERMINATED: 08/02/2013 ATTORNEY TO BE NOTICED

Nathan M. Swinton (See above for address) ATTORNEY TO BE NOTICED

Patrick Nemeroff (See above for address) TERMINATED: 09/17/2013 ATTORNEY TO BE NOTICED

Susan K. Ullman (See above for address) ATTORNEY TO BE NOTICED

Defendant David V Aguilar

represented by Jonathan G. Cooper (See above for address) ATTORNEY TO BE NOTICED

Joseph C. Folio , III (See above for address) ATTORNEY TO BE NOTICED

Judson O. Littleton (See above for address) TERMINATED: 08/02/2013 ATTORNEY TO BE NOTICED

Nathan M. Swinton (See above for address) ATTORNEY TO BE NOTICED

Patrick Nemeroff (See above for address) TERMINATED: 09/17/2013 ATTORNEY TO BE NOTICED

Case: 2:12-cv-11656 As of: 11/11/2017 06:38 PM EST 6 of 12
Susan K. Ullman (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/13/2012
04/13/2012
04/13/2012 04/16/2012 04/16/2012 04/17/2012 05/03/2012 05/03/2012 05/03/2012 05/03/2012 05/03/2012 06/07/2012
07/23/2012 08/30/2012
09/04/2012 09/14/2012 09/14/2012
09/14/2012

# Docket Text
1 COMPLAINT AND JURY DEMAND filed by All Plaintiffs against All Defendants with Jury Demand. Plaintiff requests summons issued. Receipt No: 0645−3483917 − Fee: &#036 350. County of 1st Plaintiff: Wayne County, MI − County Where Action Arose: Wayne County, MI − County of 1st Defendant: Wayne County, MI. [Previously dismissed case: No] [Possible companion case(s): None] (Masri, Lena) (Entered: 04/13/2012)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (KKra) (Entered: 04/13/2012)
2 SUMMONS Issued for *Michael Jerome Fisher, Robert S Mueller, III, John S Pistole, Jeff Sokolowski, Robert B Thompson* (KKra) (Entered: 04/13/2012)
3 NOTICE of Appearance by Shereef H. Akeel on behalf of All Plaintiffs. (Akeel, Shereef) (Entered: 04/16/2012)
4 NOTICE of Appearance by Gadeir I. Abbas on behalf of All Plaintiffs. (Abbas, Gadeir) (Entered: 04/16/2012)
5 SUMMONS Issued for the United States Attorney and the Office of the Attorney General. (KKra) (Entered: 04/17/2012)
6 CERTIFICATE of Service/Summons Returned Executed. Robert Thompson served on 4/18/12. (Masri, Lena) (Entered: 05/03/2012)
7 CERTIFICATE of Service/Summons Returned Executed. Jeff Sokolowski served on 4/20/12. (Masri, Lena) (Entered: 05/03/2012)
8 CERTIFICATE of Service/Summons Returned Executed. U.S. Attorney General served on 4/23/12. (Masri, Lena) (Entered: 05/03/2012)
9 CERTIFICATE of Service/Summons Returned Executed. U.S. Attorney on behalf of All Defendants. (Masri, Lena) (Entered: 05/03/2012)
10 CERTIFICATE of Service/Summons Returned Executed. Robert S. Mueller, III served on 4/23/12. (Masri, Lena) (Entered: 05/03/2012)
11 STIPULATED ORDER Extending & Consolidating Time to Respond to 1 Complaint. Response due 07/30/2012 Signed by District Judge Avern Cohn. (JOwe) (Entered: 06/07/2012)
12 STIPULATED ORDER Extending Time to Respond to 1 Complaint, Answer due 08/29/2012 Signed by District Judge Avern Cohn. (JOwe) (Entered: 07/23/2012)
13 STIPULATION AND ORDER EXTENDING & CONSOLIDATING TIME TO RESPOND TO COMPLAINT re 1 Complaint, Signed by District Judge Avern Cohn. (Bankston, T) (Entered: 08/30/2012)
Set Deadlines/Hearings: Responses due by 9/14/2012 (JOwe) (Entered: 09/04/2012)
14 MOTION to Dismiss by Jeff Sokolowski, Robert B Thompson. (Levine, Brant) (Entered: 09/14/2012)
15 STIPULATED ORDER Allowing Official−Capacity Defendants to File a Twenty−Six Page Brief in Support of Their 14 MOTION to Dismiss Signed by District Judge Avern Cohn. (JOwe) (Entered: 09/14/2012)
16 MOTION to Dismiss by Michael Jerome Fisher, Robert S Mueller, III, John S Pistole. (Littleton, Judson) (Entered: 09/14/2012)

Case: 2:12-cv-11656 As of: 11/11/2017 06:38 PM EST 7 of 12

09/17/2012 09/19/2012 10/01/2012 10/01/2012 10/04/2012
11/13/2012 11/16/2012
11/16/2012 11/19/2012 11/19/2012 11/30/2012 12/15/2012 12/15/2012 12/15/2012 12/15/2012 01/09/2013 01/18/2013 01/18/2013 01/18/2013 01/24/2013

17 NOTICE TO APPEAR: Status Conference set for 10/18/2012 02:00 PM before District Judge Avern Cohn (JOwe) (Entered: 09/17/2012)
18 NOTICE of Appearance by Jennifer E. Nimer on behalf of All Plaintiffs. (Nimer, Jennifer) (Entered: 09/19/2012)
TEXT−ONLY NOTICE: Status Conference on 10/18/2012 is Cancelled re 17 Notice to Appear (JOwe) (Entered: 10/01/2012)
19 NOTICE TO APPEAR: Status Conference reset for 11/13/2012 02:00 PM before District Judge Avern Cohn (JOwe) (Entered: 10/01/2012)
20 STIPULATED ORDER Extending Time to Respond to Motions to Dismiss, Set Motion and R&R Deadlines/Hearings as to 14 MOTION to Dismiss , 16 MOTION to Dismiss :( Responses due by 11/16/2012) Signed by District Judge Avern Cohn. (JOwe) (Entered: 10/04/2012)
Minute Entry − Status Conference held on 11/13/2012 before District Judge Avern Cohn. (JOwe) (Entered: 11/13/2012)
21 AMENDED COMPLAINT with Jury Demand filed by All Plaintiffs against Unidentified CBP Agents, Unidentified FBI Agents, Robert S Mueller, III, Jeff Sokolowski, Robert B Thompson, Janet Napolitano, David V Aguilar. NEW PARTIES ADDED. (Attachments: # 1 Exhibit DHS CRCL Legal Memorandum − October 1, 2010, # 2 Exhibit DHS CRCL Letter − May 3, 2011, # 3 Exhibit CBP Memorandum − May 3, 2011) (Masri, Lena) (Entered: 11/16/2012)
REQUEST for SUMMONS for David V Aguilar, Janet Napolitano. (Masri, Lena) (Entered: 11/16/2012)
22 SUMMONS Issued for *David V Aguilar, Janet Napolitano* (TMcg) (Entered: 11/19/2012)
23 SUMMONS Issued for the United States Attorney and the Office of the Attorney General. (TMcg) (Entered: 11/19/2012)
24 NOTICE by David V Aguilar, Robert S Mueller, III, Janet Napolitano, Jeff Sokolowski, Robert B Thompson Regarding Responses to Amended Complaint (Littleton, Judson) (Entered: 11/30/2012)
25 CERTIFICATE of Service/Summons Returned Executed. U.S. Attorney on behalf of David V Aguilar served on 11/28/2012, answer due 1/28/2013; Janet Napolitano served on 11/28/2012, answer due 1/28/2013. (Masri, Lena) (Entered: 12/15/2012)
26 CERTIFICATE of Service/Summons Returned Executed. Office of the Attorney General served on 12/3/2012. (Masri, Lena) (Entered: 12/15/2012)
27 CERTIFICATE of Service/Summons Returned Executed. David V Aguilar served on 12/3/2012. (Masri, Lena) (Entered: 12/15/2012)
28 CERTIFICATE of Service/Summons Returned Executed. Janet Napolitano served on 12/3/2012. (Masri, Lena) (Entered: 12/15/2012)
29 NOTICE TO APPEAR: Status Conference set for 1/24/2013 02:00 PM before District Judge Avern Cohn (SCha) (Entered: 01/09/2013)
30 STIPULATED ORDER ENLARGING PAGE LIMITS FOR BRIEFING ON MOTION TO DISMISS. Signed by District Judge Avern Cohn. (SCha) (Entered: 01/18/2013)
31 MOTION to Dismiss Amended Complaint by Jeff Sokolowski, Robert B Thompson. (Levine, Brant) (Entered: 01/18/2013)
32 MOTION to Dismiss Amended Complaint by David V Aguilar, Robert S Mueller, III, Janet Napolitano. (Littleton, Judson) (Entered: 01/18/2013)
Minute Entry − Status Conference held on 1/24/2013 before District Judge Avern Cohn. (SCha) (Entered: 01/24/2013)

Case: 2:12-cv-11656 As of: 11/11/2017 06:38 PM EST 8 of 12

01/25/2013 03/08/2013 03/19/2013 03/22/2013 03/22/2013 03/22/2013 03/28/2013 04/15/2013 04/15/2013 04/15/2013 04/30/2013 05/03/2013 05/16/2013
05/28/2013 05/29/2013
06/11/2013 06/11/2013 06/17/2013

33 PRETRIAL ORDER. Signed by District Judge Avern Cohn. (SCha) (Entered: 01/25/2013)
34 Stipulated Order Extending Time to Respond to Motions to Dismiss. Signed by District Judge Avern Cohn. (SCha) (Entered: 03/08/2013)
35 Stipulated Order Dismissing Selected Defendants, Michael Jerome Fisher and John S Pistole terminated. Signed by District Judge Avern Cohn. (SCha) (Entered: 03/19/2013)
36 Stipulated Order Enlarging Page Limit for Plaintiffs' Response to Motion to Dismiss Amended Complaint by Official−Capacity Defendants. Signed by District Judge Avern Cohn. (SCha) (Entered: 03/22/2013)
37 RESPONSE to 31 MOTION to Dismiss Amended Complaint by Defendants Robert B. Thompson & Jeff Sokolowski filed by All Plaintiffs. (Masri, Lena) (Entered: 03/22/2013)
38 RESPONSE to 32 MOTION to Dismiss Amended Complaint by Official−Capacity Defendants filed by All Plaintiffs. (Masri, Lena) (Entered: 03/22/2013)
39 NOTICE OF HEARING on 32 MOTION to Dismiss Amended Complaint, 31 MOTION to Dismiss Amended Complaint. Motion Hearing set for 5/1/2013 02:00 PM before District Judge Avern Cohn (SCha) (Entered: 03/28/2013)
40 Stipulated Order Enlarging Page Limits for Briefing on Motion to Dismiss Signed by District Judge Avern Cohn. (SCha) (Entered: 04/15/2013)
41 REPLY to Response re 31 MOTION to Dismiss Amended Complaint filed by Jeff Sokolowski, Robert B Thompson. (Levine, Brant) (Entered: 04/15/2013)
42 REPLY to Response re 32 MOTION to Dismiss Amended Complaint filed by David V Aguilar, Robert S Mueller, III, Janet Napolitano. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Littleton, Judson) (Entered: 04/15/2013)
Set/Reset Deadlines as to 32 MOTION to Dismiss Amended Complaint, 31 MOTION to Dismiss Amended Complaint. Motion Hearing reset for 5/22/2013 02:00 PM before District Judge Avern Cohn (SCha) (Entered: 04/30/2013)
Set/Reset Deadlines as to 32 MOTION to Dismiss Amended Complaint, 31 MOTION to Dismiss Amended Complaint. Motion Hearing set for 5/29/2013 02:00 PM before District Judge Avern Cohn (SCha) (Entered: 05/03/2013)
Set/Reset Deadlines as to 32 MOTION to Dismiss Amended Complaint, 31 MOTION to Dismiss Amended Complaint. Motion Hearing set for 5/29/2013 11:00 AM (TIME CHANGE ONLY) before District Judge Avern Cohn (SCha) (Entered: 05/16/2013)
43 NOTICE of Appearance by Munia Farhana Jabbar on behalf of All Plaintiffs. (Jabbar, Munia) (Entered: 05/28/2013)
Minute Entry − Motion Hearing held on 5/29/2013 re 32 MOTION to Dismiss Amended Complaint filed by Robert S Mueller, III, David V Aguilar, Janet Napolitano, 31 MOTION to Dismiss Amended Complaint filed by Robert B Thompson, Jeff Sokolowski before District Judge Avern Cohn. Disposition: taken under advisement(Court Reporter Sheri Ward) (SCha) (Entered: 05/29/2013)
44 Memorandum and Order Granting in Part and Denying in Part Official−Capacity Defendants' 32 Motion to Dismiss. Signed by District Judge Avern Cohn. (SCha) (Entered: 06/11/2013)
45 Order of Bifurcation. Signed by District Judge Avern Cohn. (SCha) (Entered: 06/11/2013)
46 AMENDED COMPLAINT , SECOND (OFFICIAL−CAPACITY DEFENDANTS) filed by All Plaintiffs against David V Aguilar, Robert S Mueller, III, Janet Napolitano. NO NEW PARTIES ADDED. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Masri, Lena) (Entered: 06/17/2013)

Case: 2:12-cv-11656 As of: 11/11/2017 06:38 PM EST 9 of 12

06/17/2013
06/19/2013 06/26/2013 07/25/2013 07/25/2013 07/26/2013 07/31/2013
08/02/2013 08/07/2013 08/14/2013
08/14/2013 09/16/2013 09/16/2013 09/17/2013
09/23/2013 10/18/2013 02/14/2014
02/18/2014
02/18/2014 04/08/2014 05/02/2014

47 AMENDED COMPLAINT , SECOND (INDIVIDUAL−CAPACITY DEFENDANTS) filed by All Plaintiffs against Unidentified CBP Agents, Unidentified FBI Agents, Jeff Sokolowski, Robert B Thompson. NO NEW PARTIES ADDED. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Masri, Lena) (Entered: 06/17/2013)
48 Order Staying Proceedings as to Individual−Capacity Defendants Signed by District Judge Avern Cohn. (SCha) (Entered: 06/19/2013)
49 Stipulated Order Extending Time to Respond to Second Amended Complaint Signed by District Judge Avern Cohn. (SCha) (Entered: 06/26/2013)
50 NOTICE of Appearance by Patrick Nemeroff on behalf of David V Aguilar, Robert S Mueller, III, Janet Napolitano. (Nemeroff, Patrick) (Entered: 07/25/2013)
51 ANSWER to Amended Complaint with Affirmative Defenses by Robert S Mueller, III, Janet Napolitano. (Nemeroff, Patrick) (Entered: 07/25/2013)
52 NOTICE TO APPEAR: Status Conference set for 8/19/2013 02:00 PM before District Judge Avern Cohn (SCha) (Entered: 07/26/2013)
53 Notice of E−mail Delivery Failure as to attorney Judson O. Littleton. Bounced NEF for 50 Notice of Appearance, 52 Notice to Appear, 51 Answer to Amended Complaint. (KCla) (Entered: 07/31/2013)
54 ORDER of Attorney Substitution. Attorney Patrick Nemeroff substitued for Judson O. Littleton Signed by District Judge Avern Cohn. (DTyl) (Entered: 08/05/2013)
Set Deadlines/Hearings: Status Conference RESET for 8/26/2013 02:00 PM before District Judge Avern Cohn (SCha) (Entered: 08/07/2013)
55 Stipulated Order of Dismissal of Individual Capacity Claims Only, Jeff Sokolowski and Robert B Thompson terminated. Signed by District Judge Avern Cohn. (SCha) (Entered: 08/14/2013)
Set Deadlines/Hearings: Status Conference RESET for 9/23/2013 02:00 PM before District Judge Avern Cohn (SCha) (Entered: 08/14/2013)
56 NOTICE of Appearance by Jonathan G. Cooper on behalf of David V Aguilar, Robert S Mueller, III, Janet Napolitano. (Cooper, Jonathan) (Entered: 09/16/2013)
57 DISCOVERY plan jointly filed pursuant to Federal Rules of Civil Procedure 26(f) (Cooper, Jonathan) (Entered: 09/16/2013)
58 ORDER Substituting Counsel for the Official Capacity Defendants. Attorney Patrick Nemeroff terminated. Signed by District Judge Avern Cohn. (PMil) (PMil). (Entered: 09/17/2013)
Minute Entry for proceedings held before District Judge Avern Cohn: Status Conference held on 9/23/2013 (SCha) (Entered: 09/24/2013)
59 NOTICE TO APPEAR: Final Pretrial Conference set for 12/16/2014 02:00 PM before District Judge Avern Cohn (SCha) (Entered: 10/18/2013)
60 Joint MOTION for Protective Order by David V Aguilar, Robert S Mueller, III, Janet Napolitano. (Attachments: # 1 Exhibit Proposed Privacy Act Protective Order & Acknowledgement) (Cooper, Jonathan) (Entered: 02/14/2014)
61 Stipulated Order Amending Discovery Plan for Claims Against Official − Capacity Defendants, ( Discovery due by 7/7/2014) Signed by District Judge Avern Cohn. (SCha) (Entered: 02/18/2014)
62 Stipulated Privacy Act Protective Order Signed by District Judge Avern Cohn. (SCha) (Entered: 02/18/2014)
63 NOTICE of Appearance by Joseph C. Folio, III on behalf of David V Aguilar, Robert S Mueller, III, Janet Napolitano. (Folio, Joseph) (Entered: 04/08/2014)
64 MOTION AMEND DISCOVERY PLAN FOR CLAIMS AGAINST OFFICIAL−CAPACITY DEFENDANTS re 57 Discovery Plan − Rule 26f, 61 Stipulation and Order, Set Scheduling Order Deadlines by All Plaintiffs. (Masri, Lena)

Case: 2:12-cv-11656 As of: 11/11/2017 06:38 PM EST 10 of 12

05/16/2014
05/19/2014
05/19/2014 05/19/2014 05/21/2014 05/23/2014 05/27/2014 05/27/2014 05/27/2014 05/27/2014 05/30/2014
06/03/2014 07/15/2014
07/30/2014

(Entered: 05/02/2014)
65 RESPONSE to 64 MOTION AMEND DISCOVERY PLAN FOR CLAIMS AGAINST OFFICIAL−CAPACITY DEFENDANTS re 57 Discovery Plan − Rule 26f, 61 Stipulation and Order, Set Scheduling Order Deadlines filed by David V Aguilar, Robert S Mueller, III, Janet Napolitano. (Attachments: # 1 Exhibit Email (Feb 1, 2014), # 2 Exhibit Email (Apr 7, 2014), # 3 Exhibit Email (May 1, 2014), # 4 Exhibit Email (Apr 1, 2014)) (Folio, Joseph) (Entered: 05/16/2014)
66 NOTICE OF HEARING on 64 MOTION AMEND DISCOVERY PLAN FOR CLAIMS AGAINST OFFICIAL−CAPACITY DEFENDANTS re 57 Discovery Plan − Rule 26f, 61 Stipulation and Order, Set Scheduling Order Deadlines . Motion Hearing set for 6/25/2014 02:00 PM before District Judge Avern Cohn (SCha) (Entered: 05/19/2014)
67 MOTION for Withdrawal of Attorney Munia Jabbar by All Plaintiffs. (Jabbar, Munia) (Entered: 05/19/2014)
TEXT−ONLY ORDER Granting re 67 MOTION for Withdrawal of Attorney Munia Jabbar filed by Ali Suleiman Ali, Abdulrahman Cherri, Kheireddine Bouzid, Wissam Charafeddine. Signed by District Judge Avern Cohn. (SCha) (Entered: 05/19/2014)
68 NOTICE of Appearance by Susan K. Ullman on behalf of David V Aguilar, Robert S Mueller, III, Janet Napolitano. (Ullman, Susan) (Entered: 05/21/2014)
69 Stipulated Order Extending Time to Respond to re 65 Response to Motion Plaintiffs Motion to Amend Discovery Plan :( Reply due by 5/30/2014) Signed by District Judge Avern Cohn. (SCha) (Entered: 05/23/2014)
70 Notice of E−mail Delivery Failure as to attorney Jonathan G. Cooper. Bounced NEF for 65 Response to Motion,. (SSch) (Entered: 05/27/2014)
71 Notice of E−mail Delivery Failure as to attorney Jonathan G. Cooper. Bounced NEF for Text−Only Order, 67 MOTION for Withdrawal of Attorney Munia Jabbar, 66 Notice of Hearing on Motion,. (SSch) (Entered: 05/27/2014)
72 Notice of E−mail Delivery Failure as to attorney Jonathan G. Cooper. Bounced NEF for 68 Notice of Appearance. (SSch) (Entered: 05/27/2014)
73 Notice of E−mail Delivery Failure as to attorney Jonathan G. Cooper. Bounced NEF for 69 Stipulation and Order, Set Motion and R&R Deadlines/Hearings. (SSch) (Entered: 05/27/2014)
74 REPLY to Response re 64 MOTION AMEND DISCOVERY PLAN FOR CLAIMS AGAINST OFFICIAL−CAPACITY DEFENDANTS re 57 Discovery Plan − Rule 26f, 61 Stipulation and Order, Set Scheduling Order Deadlines filed by All Plaintiffs. (Attachments: # 1 Exhibit A Plaintiffs First Discovery Requests, # 2 Exhibit B Plaintiffs Second Discovery Requests, # 3 Exhibit C − Correspondence between counsel regarding outstanding discovery) (Masri, Lena) (Entered: 05/30/2014)
TEXT−ONLY NOTICE: Motion Hearing on 6/25/2014 is Cancelled (SCha) (Entered: 06/03/2014)
75 TRANSCRIPT of Hearing on Motions to Dismiss held on May 29, 2013. (Court Reporter/Transcriber: Sheri Ward, ward@transcriptorders.com) (Number of Pages: 31) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 8/5/2014. Redacted Transcript Deadline set for 8/15/2014. Release of Transcript Restriction set for 10/14/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Ward, S) (Entered: 07/15/2014)
76 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 8/7/2014 02:30 PM before District Judge Avern Cohn (SCha) (Entered: 07/30/2014)

Case: 2:12-cv-11656 As of: 11/11/2017 06:38 PM EST 11 of 12

08/07/2014 08/07/2014 08/07/2014 08/07/2014 09/23/2014 09/23/2014 09/23/2014 09/23/2014 10/03/2014 10/03/2014
10/06/2014
10/14/2014 10/14/2014 02/13/2015 02/20/2015 03/16/2015
03/16/2015

Minute Entry for proceedings held before District Judge Avern Cohn: Telephonic Status Conference held on 8/7/2014 (SCha) (Entered: 08/07/2014)
TEXT−ONLY NOTICE: Final Pretrial Conference on 12/16/2014 is Cancelled (SCha) (Entered: 08/07/2014)
Set/Reset Scheduling Order Deadlines: Discovery due by 12/1/2014 (SCha) (Entered: 08/07/2014)
77 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 9/23/2014 11:00 AM before District Judge Avern Cohn (SCha) (Entered: 08/07/2014)
Minute Entry for proceedings held before District Judge Avern Cohn: Telephonic Status Conference held on 9/23/2014 (Court Reporter Sheri Ward) (SCha) (Entered: 09/24/2014)
78 Plaintiffs' Third Requests for Production of Documents and First Interrogatories to Official−Capacity Defendants by All Plaintiffs. (SCha) (Entered: 09/24/2014)
79 Notice of Rule 30(B)(6) Deposition of Federal Bureau of Investigation by All Plaintiffs (SCha) (Entered: 09/24/2014)
80 Notice of Rule 30 (B)(6) Deposition of Customs and Border Protection by All Plaintiffs (SCha) (Entered: 09/24/2014)
81 MOTION TO EXTEND Time for Filing Proposed Order Limiting Discovery (Consent) by David V Aguilar, Robert S Mueller, III, Janet Napolitano. (Folio, Joseph) (Entered: 10/03/2014)
TEXT−ONLY ORDER GRANTING re 81 MOTION TO EXTEND Time for Filing Proposed Order Limiting Discovery (Consent) filed by Robert S Mueller, III, David V Aguilar, Janet Napolitano. Signed by District Judge Avern Cohn. (SCha) (Entered: 10/03/2014)
82 TRANSCRIPT of Telephone Conference held on September 23, 2014. (Court Reporter/Transcriber: Sheri Ward, www.transcriptorders.com) (Number of Pages: 40) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 10/27/2014. Redacted Transcript Deadline set for 11/6/2014. Release of Transcript Restriction set for 1/5/2015. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Ward, S) (Entered: 10/06/2014)
Stipulated Order Limiting the Scope of Plaintiffs' Third Requests for Production of Documents and First Interrogatories to Official − Capacity Defendants Signed by District Judge Avern Cohn. (SCha) (Entered: 10/14/2014)
83 Stipulated Order Limiting the Scope of Plaintiffs' Third Requests for Production of Documents and First Interrogatories to Official − Capacity Defendants Signed by District Judge Avern Cohn. (SCha) (Entered: 10/14/2014)
84 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 2/20/2015 11:00 AM before District Judge Avern Cohn (SCha) (Entered: 02/13/2015)
Minute Entry for proceedings before District Judge Avern Cohn: Telephonic Status Conference held on 2/20/2015 (SCha) (Entered: 02/20/2015)
85 SEALED MOTION to Compel Discovery re Status Conference by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit B Plaintiffs Fourth Requests for Production of Documents and Second Interrogatories to Defendant Jeh Johnson, # 2 Exhibit Exhibit C Plaintiffs 30(b)(6) Deposition Notices, # 3 Exhibit (SEALED) Exhibit D ICE Privilege Log, # 4 Exhibit (SEALED) Exhibit E FBI Privilege Log) (Masri, Lena) (Entered: 03/16/2015)
86 MOTION to Compel Discovery by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit B Plaintiffs Fourth Requests for Production of Documents and Second Interrogatories to Defendant Jeh Johnson, # 2 Exhibit Exhibit C Plaintiffs 30(b)(6) Deposition Notices)

Case: 2:12-cv-11656 As of: 11/11/2017 06:38 PM EST 12 of 12

03/25/2015 03/30/2015
04/27/2015 04/28/2015
04/28/2015 04/28/2015 05/04/2015 05/11/2015 05/20/2015 06/01/2015 06/23/2016 07/12/2016 01/05/2017 03/17/2017 08/23/2017 09/12/2017 11/02/2017

(Masri, Lena) (Entered: 03/16/2015)
87 MOTION for Extension of Time to File Response/Reply as to 85 SEALED MOTION to Compel Discovery re Status Conference by All Plaintiffs. (Consent) by David V Aguilar, Robert S Mueller, III, Janet Napolitano. (Folio, Joseph) (Entered: 03/25/2015)
TEXT−ONLY ORDER GRANTING re 87 MOTION for Extension of Time to File Response/Reply as to 85 SEALED MOTION to Compel Discovery re Status Conference by All Plaintiffs. (Consent) filed by Robert S Mueller, III, David V Aguilar, Janet Napolitano. Signed by District Judge Avern Cohn. (SCha) (Entered: 03/30/2015)
88 Stipulated Order Enlarging Page Limits for Briefing on Plaintiffs' Motion to Compel Discovery and Defendants' Cross−Motion for a Protective Order. Signed by District Judge Avern Cohn. (SCha) (Entered: 04/27/2015)
89 RESPONSE to 86 MOTION to Compel Discovery filed by David V Aguilar, Robert S Mueller, III, Janet Napolitano. (Attachments: # 1 Exhibit A − Benner Decl., # 2 Exhibit B − Janos Depo., # 3 Exhibit C − Perry Depo., # 4 Exhibit D − Transcript of Tele. Conf. (Sept. 23, 2014), # 5 Exhibit E − Winkel Depo., # 6 Exhibit F − Schultz Depo., # 7 Exhibit G − Morin Depo., # 8 Exhibit H − Miller Depo.) (Folio, Joseph) (Entered: 04/28/2015)
90 Cross MOTION for Protective Order by David V Aguilar, Robert S Mueller, III, Janet Napolitano. (Folio, Joseph) (Entered: 04/28/2015)
91 NOTICE by David V Aguilar, Robert S Mueller, III, Janet Napolitano re 89 Response to Motion, Notice of Ex Parte Lodging (Folio, Joseph) (Entered: 04/28/2015)
92 INDEX of Exhibits re 89 Response to Motion, 90 Cross MOTION for Protective Order by David V Aguilar, Robert S Mueller, III, Janet Napolitano (Folio, Joseph) (Entered: 05/04/2015)
93 Stipulated Order Enlarging Plaintiff's Time to Reply re 85 SEALED MOTION to Compel Discovery re Status Conference by All Plaintiffs. Signed by District Judge Avern Cohn. (SCha) (Entered: 05/11/2015)
94 REPLY to Response re 86 MOTION to Compel Discovery, 90 Cross MOTION for Protective Order Combined filed by All Plaintiffs. (Masri, Lena) (Entered: 05/20/2015)
95 REPLY to Response re 90 Cross MOTION for Protective Order filed by David V Aguilar, Robert S Mueller, III, Janet Napolitano. (Attachments: # 1 Exhibit excerpt from Pl Response Interrogatories) (Ullman, Susan) (Entered: 06/01/2015)
96 NOTICE TO APPEAR: Status Conference set for 7/12/2016 11:30 AM before District Judge Avern Cohn (MVer) (Entered: 06/23/2016)
Minute Entry for proceedings before District Judge Avern Cohn: Status Conference held on 7/12/2016 (MVer) (Entered: 07/12/2016)
97 NOTICE of Change of Address/Contact Information by Lena F Masri on behalf of All Plaintiffs. (Masri, Lena) (Entered: 01/05/2017)
99 NOTICE of Appearance by Nathan M. Swinton on behalf of All Defendants. (Swinton, Nathan) (Entered: 03/17/2017)
100 NOTICE TO APPEAR: Status Conference set for 9/12/2017 10:00 AM before District Judge Avern Cohn (MVer) (Entered: 08/23/2017)
Minute Entry for proceedings before District Judge Avern Cohn: Status Conference held on 9/12/2017 (MVer) (Entered: 09/12/2017)
101 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 11/7/2017 11:00 AM before District Judge Avern Cohn (MVer) (Entered: 11/02/2017)