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Ninth Circuit Resurrects Case Alleging Muslim Targeting
In Case Termed ‘Topsy-Turvy,’ Government Abandons Support of Dismissal, Instead Asserting Standing Error; Opinion Says Plaintiffs Sufficiently Allege Official Practice
By Kimber Cooley, associate editor
A complaint alleging violations of the First and Fifth Amendments by the federal government relating to stops at the border—during which the plaintiffs contend they were improperly targeted for secondary screenings and religious questioning due to being Muslim—sufficiently alleges an unwritten, officially sanctioned government policy to establish standing, the Ninth U.S. Circuit Court of Appeals held Friday.
On Oct. 12, 2022, District Court Judge Fred W. Slaughter of the Central District of California found that “[p]laintiffs have sufficiently alleged the existence of an official practice, policy or custom of targeting Muslim Americans for religious questioning…to have standing” but dismissed, without prejudice, all claims as failing to survive constitutional scrutiny. Final judgment was entered in favor of the defendants at the plaintiffs’ request to facilitate review.
Appealing the dismissal were plaintiffs Abdirahman Kariye, Mohammed Mouslli, and Hameem Shah, who initiated the action against U.S. Department of Homeland Security Secretary Alejandro Mayorkas and other government officials in March 2022.
Friday’s memorandum opinion, by Circuit Judge Salvador Mendoza Jr. and Senior Circuit Judges Jay S. Bybee and Carlos T. Bea affirms the standing determination and reverses the dismissal.
During oral argument, Bybee noted that the appeal is “topsy-turvy” due to the government having abandoned on appeal all substantive arguments supporting the judgment of dismissal and focusing only on standing, placing the plaintiffs in the unique position of appealing only to find themselves arguing for the affirmance of the ruling as to standing.
The complaint, which seeks injunctive and declaratory relief, asserts:
“‘How often do you pray?’ ‘Do you attend mosque?’ ‘Which mosque do you attend?’ ‘Are you Sunni or Shi’a?’ These are just some of the deeply personal and religiously intrusive questions that federal border officers ask Plaintiffs—three Muslim U.S. citizens—when they return home to the United States from international travel. Border officers ask these questions pursuant to a broader policy and/or practice by U.S. Customs and Border Protection…and Homeland Security Investigations…of targeting Muslim American travelers for questioning about their religious beliefs, practices, and associations, and retaining the answers in a law enforcement database for up to 75 years.”
Standing Inquiry
The panel noted that “[t]o establish standing, plaintiffs must show that they face an imminent injury resulting from defendants’ conduct” and that they must demonstrate that they face a realistic likelihood of repeated violations due to a policy or practice of discriminatory behavior.
Turning to the allegations in the complaint, the judges wrote:
“Appellants recount ten incidents of religious-based questioning….These incidents plausibly allege an unwritten, officially sanctioned pattern or practice.”
They continued:
“The district court also considered Plaintiffs’ allegations that the Department of Homeland Security received numerous complaints about religious questioning at the border; issued memoranda on the subject; and ‘acknowledged the existence of an internal investigation into border officers’ questioning of Muslims regarding their religious practices.’ Because Appellants plausibly alleged a pattern of unwritten, officially sanctioned behavior, we AFFIRM the district court’s standing determination.”
Government’s Argument
At oral argument, Daniel Aguilar, an attorney with the Department of Justice, said “we are not asking this court to affirm the district court’s judgment based on the district court’s ruling on the merits” and agreed with the assessment that they had “abandoned” those arguments, choosing to assert that a policy or practice of discrimination has not been plausibly pled.
Aguilar argued that an alternative explanation for the questioning exists to undermine the notion of an official policy of discrimination, noting that the complaint alleges that Kariye and Mouslli are on a terrorist watchlist and that Shah had immediately objected to the search of his belongings and eventually said that he would rather not be granted access than have the agents go through his things.
The panel said:
“The government does not assert any argument on the merits of the underlying dismissal. Instead, it contends that the ‘the district court erred in holding that the complaint plausibly alleges the existence of a secret, officially sanctioned policy[,]’ and requests that this Court ‘reject that erroneous conclusion and affirm the judgment on the ground that plaintiffs failed to plausibly plead the existence of an official policy[.]’ In fact, the government concedes that if this panel holds ‘that the complaint plausibly alleges an unwritten, officially sanctioned policy, the correct disposition of this appeal would be a remand for factual development and eventual motions for summary judgment.’ Thus, by arguing only that Plaintiffs lacked standing, the government waived any argument regarding the merits of the dismissal.”
Under these circumstances, they declared:
“[W]e REVERSE the district court’s dismissal….We VACATE the district court’s judgment and REMAND for further proceedings.”
The case is Kariye v. Mayorkas, 23-55790.
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